GIFT  OF 


Su.pt. 


DOCUMENTS 
OEPT. 


A  MANUAL 
FOR  COURTS-MARTIAL 


Revised  in  the  office  of  the  Judge 

Advocate  General  of  the  Army  and 

published  by  direction  of  the 

President 


EFFECTIVE  FEBRUARY  4,  1921 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1920 


•^> 


DOCUMENTS 

DEPT. 


WAB  DEPABTMENT. 
Document  No.  1053. 
o/  ffte  Judge  Advocate  General, 


"  Justice  ought  to  bear  rule  everywhere,  and  espe- 
cially in  armies;  it  is  the  only  means  to  settle  order 
there,  and  there  it  ought  to  be  executed  with  as  much 
exactness  as  in  the  best  governed  cities  of  the  king- 
dom, if  it  be  intended  that  the  soldiers  should  be  kept 
in  their  duty  and  obedience." — The  Art  of  War,  by 
Louis  de  Gaya,  in  1678.  (Title  page,  Glode,  Adminis- 
tration of  Justice  under  Military  and  Martial  Law, 
1892.) 


The  discipline  and  reputation  of  the  Army  are 
deeply  involved  in  the  manner  in  which  military 
courts  are  conducted  and  justice  administered.  The 
duties,  therefore,  that  devolve  on  officers  appointed  to 
sit  as  members  of  courts-martial  are  of  the  most  grave 
and  important  character.  That  these  duties  may  be 
discharged  with  justice  and  propriety  it  is  incumbent 
on  all  officers  to  apply  themselves  diligently  to  the 
acquirement  of  a  competent  knowledge  of  military 
law,  to  make  themselves  perfectly  acquainted  with  all 
orders  and  regulations,  and  with  the  practice  of  mili- 
tary courts. — Army  Regulations,  1835,  Article  XXXV, 
paragraph  1. 


m 


'52124 


INTRODUCTION. 


This  book  is  a  revision  of  the  1917  edition  of  the  Manual 
for  Courts-Martial,  which  was  prepared  in  the  office  of  the 
Judge  Advocate  General  and  issued  by  direction  of  the  Sec- 
retary of  War  under  date  of  November  29,  1916,  to  take 
effect  March  1,  1917,  for  the  purpose  of  introducing  and  in- 
terpreting to  the  Military  Establishment  the  Articles  of 
War  enacted  August  29,  1916.  The  general  plan  and  scope 
of  that  Manual  have  been  approved  by  the  service.  They 
are  retained  in  this  edition. 

The  Articles  of  "War  of  1916  were  the  outgrowth  of  long 
experience  and  careful  study ;  but  since  their  enactment  the 
World  War  has  supervened.  It  would  have  been  strange  if 
the  unusual  experiences  of  such  a  war,  where  upward  of 
200,000  new  officers  were  commissioned  in  the  service,  largely 
with  brief  training,  and  nearly  4,000,000  men  were  suddenly 
called  into  the  Army,  had  not  developed  some  defects  in  the 
system  of  military  justice.  It  was  to  be  expected  that  the 
conditions  of  such  an  unprecedented  World  War  would  show 
many  respects  in  which  the  existing  code  might  be  improved. 
Nevertheless,  while  some  defects  developed,  the  system  as  a 
whole  worked  well.  A  mighty  army  was  quickly  dis- 
ciplined; indeed  was  raised  within  a  few  months  to  such  a 
high  pitch  of  discipline  that,  tested  at  the  front,  not  only 
did  it  do  its  duty  magnificently,  but  the  relative  number  of 
courts-martial  was  markedly  less  than  in  ordinary  peace 
times.  In  one  respect  it  made  an  unexampled  record — it 
proved  not  to  be  necessary,  during  the  whole  war,  to  carry 
the  death  sentence  into  effect  a  single  time  for  a  purely  mili- 
tary offense.  The  War  Department  board  created  in  the 
spring  of  1919,  under  the  presidency  of  Maj.  Gen.  Kernan, 
to  examine  into  the  administration  of  military  justice  dur- 
ing the  war  and  make  recommendations  for  its  improve- 


INTRODUCTION. 

ment,  reported   (Report  of  Kernan  Board,  July  IT,  1919. 
p.  13): 

"  In  the  opinion  of  this  board,  the  existing  court-martial  system  is 
fundamentally  sound  and  well  calculated  to  serve  successfully  the 
ends  for  which  it  was  created.  It  is  an  evolution  representing  con- 
stant change  and  growth.  No  claim  is  made  that  it  is  a  perfect  sys- 
tem; rather  it  is  definitely  admitted  that  in  the  light  of  experience 
changes  may  be  made  now  in  the  direction  of  improvement.  Under  it 
errors  in  the  proceedings,  the  findings,  and  in  the  measure  of  punish- 
ment occur  from  time  to  time.  This  has  always  been  so  and  will 
always  be  so  in  some  measure.  But  this  is  not  peculiar  to  the  court- 
martial  ;  it  is  true  of  all  agencies  created  and  administered  by  man. 
Military  justice  is  carried  out  at  all  times  under  great  urgency  and 
stress,  where  the  nice  deliberation  and  finish  of  the  civil  procedure 
is  utterly  impossible." 

Meeting  needs  as  they  developed,  the  War  Department, 
upon  the  recommendation  of  the  Judge  Advocate  General, 
by  General  Orders,  No.  T,  January  IT,  1918,  early  in  the  war 
established  a  judicial  advisory  review  in  the  office  of  the 
Judge  Advocate  General  (or  in  a  branch  office,  under  an 
acting  judge  advocate  general  in  France)  of  sentences  of 
general  courts-martial  involving  death,  dismissal  of  an  offi- 
cer, or  unsuspended  dishonorable  discharge  of  an  enlisted 
man;  and  at  the  same  time  recommended  to  Congress  that 
appellate  power  to  review  sentences  of  general  courts-martial 
be  lodged  in  the  President.  In  March>  1919,  the  Judge 
Advocate  General  recommended  consideration  of  certain 
changes  in  the  administration  of  military  law ;  and,  early  in 
April,  1919,  submitted  to  the  Secretary  of  War  drafts  of 
general  orders  and  changes  in  the  Manual  for  Courts-Martial 
designed  to  carry  into  effect  the  following  purposes : 

(a)  To  prevent  the  return  to  a  court-martial  of  a  record  of  trial 
for  reconsideration  of  an  acquittal. 

(6)  To  prevent  courts,  at  proceedings  in  revision,  from  increasing 
in  severity  sentences  previously  adjudged  by  them. 

(c)  To  provide  for  greater  care  in  the  preliminary  investigation  of 
charges. 

(d)  To  encourage  the  use  of  the  power  of  commanding  officers  to 
administer  disciplinary  punishment  under  the  one  hundred  and  fourth 
article  of  war  in  preference  to  resort  to  courts-martial. 

(e)  To  encourage  the  reference  of  cases  to  inferior  courts  rather 
than  to  general  courts-martial. 


VI 


INTRODUCTION. 

(/)  To  definitely  require  (what  had  theretofore  been  the  usual 
practice)  the  reference  of  charges  to  a  staff  judge  advocate  before  re- 
ferring them  to  a  general  court-martial  for  trial. 

(0)  To  definitely  require  the  reference  of  records  of  trials  by  gen- 
eral courts-martial  to  a  staff  judge  advocate  for  advice,  before  action 
thereon  by  a  reviewing  authority. 

After  having  been  considered  by  the  General  Staff,  the 
Chief  of  Staff,  and  the  Secretary  of  War,  these  recommen- 
dations were  embodied  an  substance  in  General  Orders,  No. 
88,  War  Department,  1919,  and  "  Changes,  Manual  for 
Courts  Martial,'5  No.  5,  July  14,  1919. 

All  of  these  purposes  were  afterwards  realized  in  statutory 
form  in  the  recent  revision  of  the  Articles  of  War. 

REVISION  OF  THE  ARTICLES  OF  WAR. 

During  the  early  part  of  the  year  1919  several  proposed 
revisions  of  the  Articles  of  War  were  introduced  in  both 
Houses  of  the  Sixty-fifth  Congress,  third  session,  and  re- 
ferred to  the  Military  Affairs  Committees  of  the  Senate  and 
the  House  of  Representatives,  respectively,  and  during  the 
month  of  February,  1919,  hearings  were  held  by  the  Senate 
Committee  on  Military  Affairs  upon  a  bill  providing  for 
amendments  to  the  Articles  of  War,  which  had  been  intro- 
duced in  the  Senate  by  the  chairman  of  that  committee. 
However,  no  bill  was  reported  to  either  the  Senate  or  the 
House  of  Representatives  during  that  session  of  the  Con- 
gress. 

Beginning  early  in  the  year  1919,  careful  consideration 
and  study  was  given  to  the  whole  system  of  court-martial 
procedure,  with  a  view  to  its  revision  and  improvement  in 
the  light  of  experiences  of  the  war.  This  consideration  and 
study  was  carried  on  by  the  War  Department  through  the 
special  War  Department  board  on  "  Courts-Martial  and 
Their  Procedure,"  composed  of  Maj.  Gen.  Francis  J.  Ker- 
nan,  U.  S.  Army,  Maj.  Gen.  John  F.  O'Ryan,  New  York 
National  Guard,  and  Lieut.  Col.  Hugh  W.  Ogden,  Judge 
Advocate;  by  a  committee  of  civilian  lawyers  appointed  by 
the  president  of  the  American  Bar  Association;  and  by  the 
Office  of  the  Judge  Advocate  General,  including  a  special 
study  of  the  system  of  military  justice  in  the  British, 
French,  and  Belgian  Armies  by  an  officer  detailed  for  that 
purpose.  Through  the  courtesy  of  the  various  Governments, 

VII 


IIH'RODUCTION'. 

statistical  and  other  information  relating  to  the  experiences 
of  those  armies  in  administering  military  justice  during  the 
war  were  thus  placed  at  the  disposal  of  the  Judge  Advocate 
General's  Office.  Particular  acknowledgment  is  due  to  Sir 
Felix  Cassel,  Judge  Advocate  General  of  the  British  Forces ; 
to  M.  Edouard  Ignace,  French  Undersecretary  of  State  for 
Military  Justice;  and  to  Gen.  Baron  van  Zuylen  van  Nye- 
velt,  Auditeur  General  of  the  Belgian  Army. 

The  first  session  of  the  Sixty-sixth  Congress  began  on 
May  19,  1919,  and  several  proposed  revisions  of  the  Articles 
of  War  were  introduced  in  both  Houses  of  the  Congress  at 
that  session,  and  referred  to  the  Military  Affairs  Commit- 
tees of  the  Senate  and  House  of  Representatives,  respec- 
tively. 

A  subcommittee  of  the  Senate  Committee  on  Military 
Affairs  held  very  extensive  hearings  on  one  of  the  bills,  and 
went  into  the  subject  very  fully.  Besides  the  views  of  a 
large  number  of  well-informed  witnesses,  there  were  pre- 
sented, for  the  consideration  of  the  subcommittee,  the  re- 
sults of  the  studies  referred  to  above. 

At  the  conclusion  of  those  hearings,  upon  the  invitation  of 
the  subcommittee  of  the  Senate  Committee  on  Military  Af- 
fairs, a  bill  providing  for  a  revision  of  the  Articles  of  War 
wns  prepared  and  submitted  to  the  subcommittee  by  the 
Judge  Advocate  General. 

That  revision,  with  few  changes,  was  adopted  by  both 
the  subcommittee  and  the  full  Committee  on  Military  Af- 
fairs of  the  Senate,  and  by  the  Committee  on  Military  Af- 
fairs of  the  House  of  Representatives;  was  favorably  re- 
ported to  both  Houses  of  the  Congress  by  those  committees ; 
and  subsequently  was  enacted  into  law  as  Chapter  II  of  the 
Army  Reorganization  Act  of  June  4,  1920  (41  Stat.  787). 

The  salient  features  of  the  revision  are  as  follows : 

1.  Enlisted  men  are  placed  on  a  parity  with  officers  in  respect  of  the 
right  to  prefer  charges  against  persons  in  the  military  service;  but  all 
charges  must  be  verified  by  affidavit.     (A.  W.  70.) 

2.  The  preliminary   investigation  of  charges  is  made  more  strict 
than  in  the  former  code;  particularly  by  the  new  requirement  that, 
at  the  preliminary  investigation,  full  opportunity  shall  be  given  to 
the  accused  to  cross-examine  witnesses  who  appear  against  him,  if 
they  are  available,     (A.  W.  70.) 

Yin 


IISTRODUCTIOIT. 

3.  The  present  regulation    (C.  M.  C.  M.  No.  5,  July  14,  1919,  par. 
76a),  which  requires  that,  before  directing  the  trial  of  a  case  by 
general  court-martial,  the  convening1  authority  shall  refer  the  charges 
presented  to  his  staff  judge  advocate  for  consideration  and  advice, 
is  made  mandatory  by  statute.     (A.  W.  70,  par.  3.) 

4.  UnEeeessary   delay   on   the   part   of   an   officer  in   investigating 
charges  or  carrying  a  case  to  a  final  conclusion  is  made  an  offense 
punishable  by  trial  by  court-martial.     (A.  W.  70.) 

5.  Resort  to  arrest  instead  of  confinement  pending  trial  in  the  cases 
of  enlisted:  men  charged  with  minor  offenses  is  prescribed  instead  of 
merely  being  authorized.     This  places  enlisted  men  upon  the  same 
footing  as  officers  in  respect  of  such  offenses.     (A.  W.  69.) 

6.  Resort  to  the  power  of  commanding  officers  to  administer  dis- 
ciplinary punishment  under  the  one  hundred  and  fourth  article  of 
war,  in  preference  to  resort  to  courts-martial,  is  encouraged. 

7.  The  appointment  by  the  convening  authority  of  defense  counsel, 
and  one  or  more  assistants,  in  the  same  manner  in  which  trial  judge 
advocates  and  their  assistants  are  appointed,  is  made  mandatory  by 
statute.    This  places  the  defense  upon  the  same  footing  as  the  prose- 
cution before  the  court,  but  does  not  prevent  the  man  tried  from  be- 
ing represented  by  his  own  counsel,  if  he  so  desires.     (A.  W.  11,  17.) 

8.  A  "  law  member "  is  provided  for  every  general  court-martial 
(A.  W.  8,  par.  2),  with  power  to  rule  upon  all  interlocutory  ques- 
tions,  except  challenges,  subject    (except  as  to  rulings  on  the  ad- 
missibility  of  evidence)    to  an  appeal  to  the  court  itself.      (A.  W. 
31.) 

9.  The  requirement   (which  heretofore  has  existed  by  regulation) 
that  every  record  of  trial  by  a  general  court-martial  or  military  com- 
mission shall  be  referred  to  a  staff  judge  advocate  or  to  the  Judge 
Advocate  General  for  advice  before  action  thereon  by  the  reviewing 
or  confirming  authority,  is  made  mandatory  by  statute.     (A.  W.  4(5.) 

10.  The  words,  "  in  time  of  peace,"  are  eliminated  from  the  forty- 
fifth  article  of  war,  thus  enabling  the  President  to  fix  the  maximum 
limits  of  punishment  in  time  of  war,  as  well"  as  in  time  of  peace. 

11.  The  prohibition   (which  heretofore  has  existed  by  regulation), 
against    (a),  the  reconsideration  by  a   court,   at  proceedings  in   re- 
vision, of  an  acquittal ;  a  finding  of  not  guilty  of  any  specification ; 
or  a  finding  of  not  guilty  of  any  charge,  unless  the  record  shows  a 
finding  of  guilty  under  a  specification  laid  under  that  charge,  which 
sufficiently  alleges  a  violation  of  some  article  of  war;  and  (6),  the 
adjudication  by  a   court,   at  proceedings  in  revision,  of  a  sentence 
more  severe  than  that  previously  adjudged  by  it  (unless  the  sentence 
previously  adjudged  was  less  than  the  mandatory  sentence  fixed  by- 
law for  the  offense  or  offenses  upon  which  a  conviction  was  had), 
is  made  mandatory  by  statute.     (A.  W,  40.) 

12.  Provision  is  made  for  a  new  trial  in  proper  cases.     (A.  W.  40, 
47,  49,  50i.) 


INTRODUCTION. 

13.  A  unanimous  vote  of  the  members  of  the  court  for  death  sen- 
tences, a  vote  of  three-fourths  of  the  members  of  the  court  for  sen- 
tences involving  confinement  for  life  or  for  more  than  10  years,  and 
a  vote  of  two-thirds  of  the  members  of  the  court  for  all  other  sen- 
tences, is  required.     (A.  W.  43.) 

14.  Provision  is  made  for  a  system  of  appellate  review  for  all  gen- 
eral court-martial  cases.     (A.  W.  50 £.) 

15.  Provision  is  made  for  greater  flexibility  in  the  suspension  of 
sentences.     (A.  W.  52.) 

Other  changes  in  the  interest  of  better  administration 
and  greater  flexibility  which  may  be  mentioned  are:  An 
amendment  to  Articles  of  War  5  and  6,  removing  the  maxi- 
mum limit  as  to  the  number  of  members  for  general  and 
special  courts-martial ;  a  change  in  Article  of  War  18  which 
allows  each  side  one  peremptory  challenge  (the  law  member 
of  the  court  not  being  subject  to  challenge,  except  for 
cause) ;  and  a  change  in  nomenclature  from  "  judge  advo- 
cate "  to  "  trial  judge  advocate,"  to  avoid  possible  confusion 
with  the  staff  judge  advocate. 

With  the  exception  of  Articles  2,  23,  and  45,  which  took 
effect  on  June  4,  1920,  the  date  on  which  the  act  was  ap- 
proved, the  revision  will  go  into  effect  on  February  4,  1921. 
The  provisions  of  the  act  which  have  already  become  ef- 
fective are  as  follows: 

Article  2,  "  Persons  subject  to  military  law,"  is  amended  so  as 
to  include  members  of  the  Army  Nurse  Corps,  warrant  officers, 
Army  field  clerks,  and  field  clerks  Quartermaster  Corps. 

Article  23,  "  Refusal  to  appear  and  testify,"  is  amended  so  as  to 
provide  that  every  person  not  subject  to  military  law,  who  before 
any  court-martial,  military  tribunal,  or  military  board,  or  in  con- 
nection with,  or  in  relation  to  any  proceedings  or  investigation  before 
it,  is  guilty  of  any  of  the  acts  made  punishable  as  offenses  against 
public  justice  by  any  provision  of  chapter  6  of  the  act  of  March  4, 
1909  (35  Stat.  1088 — commonly  known  as  the  Federal  Penal  Code), 
or  any  amendment  thereof,  shall  be  punished  as  provided  therein. 

Article  45,  "Maximum  limits"  (of  punishment),  is  amended  so 
as  to  enable  the  President  to  prescribe  the  maximum  limits  of  punish- 
ment for  trials  by  courts-martial  in  time  of  war,  as  well  as  in  time 
of  peace. 

The  present  revision  of  the  Manual  for  .Courts-Martial 
has  been  prepared  primarily  to  conform  the  manual  to  the 
changes  in  the  Articles  of  War  accomplished  by  the  act  of 


INTRODUCTION". 

June  4.  1920,  and  to  embody  the  results  of  decisions  made  by 
the  Office  of  the  Judge  Advocate  General  and  the  War  De- 
partment, and  such  other  changes  in  the  regulations  for  the 
government  of  courts-martial  and  courts  of  inquiry  as  have 
been  approved  by  experience.  The  aim  is  to  adhere  to  the 
principle  observed  in  drafting  the  present  revision  of  the 
Articles  of  War,  viz,  to  make  changes  dictated  by  experi- 
ence, while  at  the  same  time  holding  fast  to  ancient  prin- 
ciples that  have  proven  their  value. 

The  salient  changes  in  the  Manual,  besides  those  required 
to  conform  to  the  new  Articles  of  War,  are: 

(a)  Paragraph  219,  procedure  in  cases  of  insanity,  has  been  en- 
tirely rewritten. 

(6)  Depositions  may  be  taken  on  oral,  as  well  as  upon  written, 
interrogatories. 

(c)  The  chapter  on  evidence  has  been  rewritten. 

(d)  More  definite  provisions  have  been  made  concerning  the  cura- 
tive effect  of  the  thirty-seventh  article  of  war. 

(e)  With  a  view  to  reducing  the  number  of  court-martial  trials, 
greater  stress  is  laid  upon  the  disciplinary  powers  of  organization 
commanders ;  and 

(f)  The  appendices  have  been,  in  large  measure,  rewritten,  and 
some  new  ones  added,  e.  g.,  Appendix  9,  forms  for  use  of  the  president 
and  the  law  member  of  courts-martial. 

For  the  convenience  of  the  service,  the  numbering  of  the 
paragraphs  in  the  Manual  of  1917  has  been  retained  and  the 
paragraph  numbers  placed  at  the  top  of  the  page,  for  ready 
reference.  Where  additional  paragraphs  have  been  neces- 
sary, they  are  inserted  as  extra  paragraphs  at  the  proper 
place  (e.  g.,  par.  89a,  "  Duties  of  the  law  member  ") ;  or,  in 
some  instances  where  it  seemed  necessary  for  clarity,  with 
half  numbers  (e.  g.,  par.  181J,  "Depositions  on  oral  inter- 
rogatories— Procedure").  Where  paragraphs  have  been 
wholly  omitted  a  note  to  that  effect  is  inserted  in  small  type. 
(See,  e.  g.,  pars.  51  and  54,  which  are  omitted  from  this  re- 
vision.) 

Changes  in  the  text  are  indicated  by  bold-face  type. 

This  Manual  takes  effect  February  4,  1921,  at  the  same 
time  as  the  new  Articles  of  War. 

E.  H.  CROWDER, 
Judge  Advocate  General. 

JANUARY  1, 1921. 

XI 


Introduction  to  1917  Edition. 


This  Manual  introduces  and  interprets  to  the  Military 
Establishment  the  revised  Articles  of  War  which  become 
effective  March  1,  1917.  The  revision  supersedes  the  exist- 
ing articles,  sometimes  designated  the  Code  of  1874,  and  re- 
peals all  other  laws  and  parts  of  laws  inconsistent  therewith. 
It  will  facilitate  an  understanding  of  the  scope  and  effect  of 
the  revision  to  refer  to  the  history  and  development  of  the 
amended  Code  of  1874,  indicate  briefly  its  most  serious  de- 
fects, and  summarize  the  principal  changes  introduced  by 
the  revision. 

HISTORY  OF  UNITED  STATES  ARTICLES  OF  WAR  PRIOR  TO  1916. 

Passing  over  the  earlier  enactments  of  the  American  Colo- 
nies of  Articles  of  War  for  the  government  of  their  respective 
forces,  examples  of  which  are  found  in  the  articles  adopted 
by  the  Provisional  Congress  of  Massachusetts  Bay,  April  5, 
1775  (Am.  Archives,  4th  series,  vol.  1,  p.  1350),  and  the  sim- 
ilar articles  adopted  in  May  and  June  of  that  year  by  the 
Provincial  Assemblies  of  Connecticut  and  Rhode  Island  and 
the  Congress  of  New  Hampshire  (idem,  vol.  2,  pp.  565,  1153, 
1180),  we  come  (a)  to  the  first  American  articles  enacted  by 
the  Second  Continental  Congress  June  30,  1775,  and  copied 
largely  from  the  British  Code  of  1765  and  the  Massachusetts 
Code;  (&)  the  Code  of  1776,  an  enlargement  and  modifica- 
tion of  the  Code  of  1775;  and  (c)  the  supplemental  Code  of 
1786,  regulating  the  composition  of  courts-martial  and  gen- 
erally the  administration  of  military  justice.  The  articles 
in  force  on  the  adoption  of  the  Constitution  of  the  United 
States  were,  by  act  of  the  First  Congress,  made  to  apply  to 
the  then  existing  Army  "  so  far  as  the  same  are  applicable  " 
and  were  continued  in  force  by  successive  enactments  until 
April  10, 1806,  when,  by  act  of  Congress  of  that  date,  revised 

xnr 


INTRODUCTION  TO  1917   EDITION. 

articles,  adapted  to  the  changed  form  of  government,  were 
enacted,  superseding  all  other  enactments  on  the  same  sub- 
ject. Thus  the  Code  of  1806  was,  in  effect,  a  reenactment  of 
the  articles  in  force  during  and  immediately  following  the 
period  of  the  Revolutionary  War,  with  only  such  modifica- 
tions as  were  necessary  to  adapt  them  to  the  Constitution  of 
the  United  States.  It  comprised  101  articles,  with  an  addi- 
tional provision  relating  to  spies.  During  the  War  of  1812 
four  of  the  articles  of  this  code  were  amended,  during  the 
Seminole  wars  three  articles  were  amended  and  one  new  arti- 
cle added,  and  during  the  Civil  War  seventeen  articles  were 
amended  and  eight  new  articles  added.  All  of  these  new 
articles  and  amendments  were  gathered  into  the  restatement 
of  the  articles  which  appears  in  the  Revised  Statutes  of  1874, 
making  a  code  of  128  articles,  with  the  additional  provision 
relating  to  spies.  Between  that  year  and  1912,  when  this  re- 
vision was  submitted  to  Congress,  the  more  important  amend- 
ments have  been  the  summary  court  and  maximum  punish- 
ment acts  of  1890;  the  repeal  of  articles  80  and  110  in  1898; 
the  repeal  of  article  123  and  the  amendment  of  articles  122 
and  124  in  1910. 

DEFECTS  OF  ARTICLES  PRIOR  TO  1916  REVISION. 

The  more  serious  defects  of  the  Code  of  1874  were  those 
incident  to  its  development  by  compilation  from  a  now  obso- 
lete and  replaced  foreign  code,  and  by  piecemeal  amendment 
made  during  periods  of  war  and  under  the  stress  of  war  con- 
ditions. Eighty-seven  articles  of  the  Code  of  1806  survive4 
in  the  amended  Code  of  1874  without  change  or  with  only 
minor  changes  of  style,  and  most  of  the  remaining  articles 
of  that  code  without  substantial  change,  with  the  result  that 
the  latter  code  was  unscientific  in  its  arrangement  and  con- 
tained many  provisions  either  wholly  obsolete  or  illy  adapted 
to  present  service  conditions.  We  may  cite  as  examples 
illustrating  its  archaic  character  the  following  of  its  pro- 
visions : 

The  fifty- fourth  and  fifty-fifth  articles  prohibited  any  kind 
of  riot  to  the  disquieting  of  "  citizens  of  the  United  States," 
and  article  59  made  mandatory  the  turning  over  to  a  civil 

XJT 


INTRODUCTION  TO  1917  EDITION. 

magistrate  of  officers  and  soldiers  accused  of  an  offense 
against  the  person  or  property  of  any  "  citizen  of  the  United 
States,"  but  only  "  upon  application  duly  made  by  or  in  be- 
half of  the  party  injured,"  ignoring  the  more  modern  doc- 
trine that  all  persons  residing  within  the  United  States  are 
entitled  to  the  equal  protection  of  the  laws,  and  that  crimes 
are  now  punished,  not  at  the  instance  of  an  individual  but  at 
the  instance  of  the  public.  Article  126  regulated  adminis- 
tration upon  the  effects  of  deceased  soldiers  and  devolved  the 
duties  incident  thereto  upon  the  commanding  officer  of  the 
troop,  battery,  or  company  to  which  the  deceased  soldier  be- 
longed, but  made  no  provision  for  similar  cases  arising 
among  the  large  class  of  soldiers  who,  under  the  present-day 
organization,  do  not  belong  to  troops,  batteries,  or  compa- 
nies ;  and  similar  instances  might  be  multiplied  indefinitely. 

IMPORTANT  CHANGES   IN  REVISION. 

The  limits  assignable  to  this  introduction  permit  only  the 
following  brief  summary  of  the  more  important  changes  in- 
troduced by  the  revised  articles : 

1.  Certain  provisions  of  the  Revised  Statutes  and  of  the 
Statutes  at  Large  in  the  nature  of  Articles  of  War,  and 
proper  for  this  reason  to  be  incorporated  in  a  military  code, 
are  reenacted  in  their  proper  places  in  the  revised  articles, 
and  certain  other  statutes  relating  to  the  procedure  and  prac- 
tice of  the  criminal  courts  of  the  United  States  are  made  the 
basis  of  new  articles.     Examples  of  legislation  incorporated 
and  of  new  articles  suggested  are  found  in  revised  articles 
2,  4,  7,  8,  22,  23,  25,  30,  34,  36,  37,  38,  42,  45,  48,  52,  80,  82, 
106,  107, 108,  112, 114, 117,  118,  and  119. 

2.  Articles  1,  10,  11,  36,  37,  52,  53,  76,  87,  and  101  of  the 
Code   of   1874,  either  wholly  obsolete   or   embracing  only 
matters  properly  within  the  field  of  Army  Regulations,  have 
been  dropped. 

3.  Related  provisions  have  been  brought  together  under 
five  separate  headings,  and  where  subheads  would  serve  a 
useful  purpose  they  have  been  employed  to  complete  the 
classification. 


21358°— 20 ii 

XT 


INTRODUCTION  TO  1917  EDITION. 

4.  Provisions  relating  to  the  same  subject-matter  have  been 
consolidated  into  a  single  article.    Examples  of  such  consoli- 
dation may  be  found  in  revised  article  48,  which  reenacts 
with  modifications  the  substantial  provisions  of  four  articles 
of  the  Code  of  1874  and  one  section  of  the  Revised  Statutes, 
all  relating  to  the  confirmation  of  sentences  of  courts-martial ; 
and  in  revised  article  61,  which  reenacts  in  brief  form  the 
material  provisions  of  six  of  the  existing  articles  of  that  code 
relating  to  unauthorized  absences. 

5.  The  authority  to  convene  general  courts-martial  has 
been  extended  to  include  "  the  commanding  officer  of  any  dis- 
trict or  of  any  force  or  body  of  troops"  when  empowered 
by  the  President,  thus  providing  for  the  case  of  expedition- 
ary forces  not  the  equivalent  of  a  brigade  or  higher  unit, 
and  other  emergent  services,  and  permitting  general  court- 
martial  jurisdictions  to  be  multiplied  as  the  exigencies  of 
the  service  may  require.     (Art.  8.) 

6.  The  jurisdiction  of  the  general  court-martial  is  made 
concurrent  with  that  of  the  military  commission  and  other 
war  tribunals  in  the  trial  of  offenses  against  the  laws  of  war, 
and  further  extended  to  include  the  capital  offenses  of  mur- 
der and  rape  when  committed  in  time  of  peace  at  places  out- 
side the  geographical  limits  of  the  States  of  the  Union  and 
the  District  of  Columbia.     (Arts.  12,  15,  and  92.) 

7.  Authority  is  granted  for  the  detail  of  one  or  more  assist- 
ant trial  judge  advocates  for  each  general  court-martial, 
with  power  to  act  for  the  judge  advocate,  thus  largely  in- 
creasing the  capacity  of  these  courts  in  the  disposition  of 
cases.     (Arts.  11  and  116.) 

8.  The  provision  of  the  Code  of  1874  making  regular 
officers  incompetent  to  sit  on  courts-martial  for  the  trial  of 
officers  and  soldiers  of  other  forces  is  abolished,  and  all  dis- 
tinctions as  to  eligibility  of  officers  of  the  several   forces 
for    the   performance   of   court-martial    duty    is    removed. 
(Art.  4.) 

9.  A  disciplinary  court,  intermediate  between  the  general 
and  summary  court,  with  adequate  power  to  impose  discip- 
linary punishments  but  without  the  power  to  adjudge  dis- 
honorable discharge,  is  providtd  for  the  trial  of  offenses 


XVI 


INTRODUCTION   TO  1917  EDITION. 

where  the  retention  of  the  offender  with  his  command,  to  be 
disciplined  rather  than  his  dishonorable  discharge,  is  con- 
templated, leaving  the  general  court-martial  with  its  ex- 
tended jurisdiction  to  be  resorted  to  in  grave  cases  calling 
for  discipline,  dishonorable  discharge,  or  prolonged  deten- 
tion in  confinement  with  or  without  dishonorable  discharge, 
and  the  summary  court  for  the  trial  of  minor  offenses  call- 
ing for  light  punishments  of  confinement  and  forfeiture. 

10.  The  power  to  prescribe  the  procedure,  including  modes 
of  proof,  in  cases  before  courts-martial  and  other  military 
tribunals  has  been   expressly   delegated   to  the   President. 
(Art.  38.) 

11.  The  statute  of  limitations  of  the  Code  of  1874  (art. 
103,  as  amended  by  act  of  Apr.  11,  1890)  fixed  a  uniform 
period  of  two  years  of  liability  to  trial  and  punishment  by 
general  court-martial   (not  expressly  excepting  any  capital 
offenses),  to  be  reckoned  from  the  date  of  the  commission  of 
the  offense  to  the  date  of  the  issuing  of  the  order  for  trial, 
except  in  case  of  peace  desertion,  when  the  period  was  re- 
quired to  be  reckoned  from  the  date  of  expiration  of  enlist- 
ment from  which  the  soldier  deserted  to  the  date  of  his 
arraignment.    No  period  of  limitation  was  presecribed  in  the 
case  of  inferior  courts.    The  new  military  statute  of  limita- 
tions (art.  39)  expressly  excepts  from  its  operation  the  capi- 
tal offenses  of  desertion  committed  in  time  of  war,  mutiny, 
and  murder,  fixes  the  period  of  limitation  at  three  years  for 
the  graver  common  law  and  statutory  felonies  denounced 
and  punished  in  revised  articles  93  and  94,  conforming  to  the 
rule  governing  Federal  civil  courts  with  concurrent  juris- 
diction of  these  offenses ;  and  the  same  period  for  the  offense 
of  desertion  in  time  of  peace,  a  study  of  statistics  having 
shown  that  few,  if  any,  deserters  of  this  class  are  arrested 
after  three  years  from  date  of   desertion.     The  two-year 
period  of  limitation  prescribed  by  the  Code- of  1874  is  re- 
tained in  the  revised  articles  for  all  other  offenses  than  those 
above  named,  and  the  uniform  rule  is  established  that  all 
these  periods  shall  be  reckoned  from  the  date  of  commission 
of  the  offense  to  the  date  of  arraignment.    The  new  statute 
covers  trials  by  any  court-martial. 


XVII 


INTRODUCTION  TO  1917  EDITION. 

of  the  former  chapter  this  office  has  had  the  assistance  of 
Prof.  Wigmore  of  the  Northwestern  University,  recently 
commissioned  a  major  and  judge  advocate  in  the  Officers'  Re- 
serve Corps.  Prof.  Wigmore  has  given  liberally  of  his  time 
in  the  preparation  of  this  chapter,  has  lent  the  authority  of 
his  name  to  what  appears  therein,  and  has  performed  a  work 
of  great  value  for  which  appreciation  will  be  general 
throughout  the  service.  In  the  chapter  on  "  Punitive  arti- 
cles "  an  effort  has  been  made  to  meet  what  is  conceived  to  be 
a  very  urgent  need  in  our  service,  namely,  a  statement  of  the 
essentials  of  proof  under  the  more  important  offenses  de- 
nounced and  punished  by  the  new  code,  for  the  guidance  of 
trial  judge  advocates. 

Due  to  the  brief  interval  between  the  enactment  of  the 
new  code  and  the  date  when  the  Manual  had  to  go  to  the 
printer  in  order  to  be  available  for  troops  on  foreign  station 
prior  to  the  taking  effect  of  the  new  code,  the  preparation  of 
the  Manual  has  necessarily  been  done  with  a  haste  which  in  a 
work  of  such  importance  it  would  have  been  desirable  to 
avoid.  It  is  hoped,  however,  that  no  fundamental  errors 
appear  therein.  In  using  the  Manual  it  should  be  borne  in 
mind  that  over  attention  to  technicalities  represents  a  fail- 
ure to  grasp  the  spirit  of  the  revision  and  will  lead  to  re- 
quests for  interpretation  which  may  usually  be  avoided  by 
the  application  of  broad  principles.  It  is  hoped  that  by  the 
amplification  of  chapters  of  this  Manual  and  the  inclusion  of 
new  chapters  on  such  subjects  as  "The  law  of  riot  duty," 
"  Martial  law,"  and  "  Military  government,"  future  editions 
may  be  made  to  embrace  all  that  is  necessary  to  the  service 
at  large  regarding  the  general  subject  of  military  law. 

JANUARY  1,  1917. 


TABLE  OF  CONTENTS 


Page. 

Promulgation — Executive  order xxvi 

Chapter  I.  Military  jurisdiction 1 

Section  I.  Source  and  kinds  of  military  jurisdiction 1 

Section  II.  Exercise  of  military  jurisdiction 2 

Section  III.  Persons  subject  to  military  law 3 

Chapter  II.  Courts-martial — Classification — Composition 8 

Section   I.  Classification 9 

Section  II.  Composition 9 

Chapter  III.  Courts-martial — By  whom  appointed 16 

Section  I.  General  courts-martial 16 

Section  II.  Special  courts-martial 20 

Section  III.  Summary  courts-martial 21 

Section  IV.  Trial  judge  advocate 24 

Section  V.  Defense  counsel 24 

Chapter    IV.  Courts-martial— Jurisdiction 25 

Section  I.  Jurisdiction  in  general 25 

Section  II.  Jurisdiction  of  general  courts-martial 31 

Section  III.  Jurisdiction  of  special  courts-martial 33 

Section  IV.  Jurisdiction  of  summary  courts-martial 35 

Section  V.  Jurisdiction  of  other  military  tribunals 36 

Chapter  V.  Courts-martial — Procedure  prior  to  trial 37 

Section  I.  Arrest  and  confinement 37 

Section  II.  Arrest  of  deserters  by  civil  authorities 41 

Chapter  VI.  Courts-martial — Procedure    prior    to    trial     (con- 
tinued)   43 

Section  I.  Preparation  of  charges 44 

Section  II.  Action  upon  charges 55 

Chapter  VII.  Courts-martial — Organization 75 

Section  I.  The  members 76 

Section  II.  The  trial  judge  advocate 86 

Section  III.  Assistant  trial  judge  advocate 90 

Section  III-A.  The  defense  counsel 92 

Section  III-B.  Assistant  defense  counsel 94 

Section  IV.  Individual  counsel  for  the  accused 94 

Section  V.  Reporter 96 

Section  VI.  Interpreter 100 

Chapter  VIII.  Courts-martial — Organization  (continued) 101 

Section  I.  Challenges 102 

Section  II.  Oaths 109 

Section  III.,  Continuances 112 

Section  IV.  Completion  of  organization 113 


TABLE   OF   CONTENTS. 

Page. 

Chapter  IX.  Courts-martial — Procedure  during  trial 114 

Section  I.  Arraignment 115 

Section   II.  Pleas 115 

Section  III.  Refusal  to  plead 127 

Section  IV.  Motions  and  other  incidents  of  the  trial 127 

Chapter  X.  Courts-martial — Witnesses  and  depositions 132 

Section  I.  Attendance  of  witnesses 133 

Section  II.  -  Depositions 143 

Section  III.  Fees,  mileage,  and  expenses  of  witnesses 149 

Chapter    XI.  Courts-martial — Evidence 154 

Section  I.  Introductory  provisions 157 

Section  II.  Circumstantial  evidence 165 

Section  III.  Testimonial  evidence 169 

Section  IV.  Documents 197 

Section  V.  Examination  of  witnesses 205 

Section  VI.  Credibility  of  witnesses 211 

Section  VII.  Depositions  and  former  testimony 216 

Section  VIII.  Presumptions 220 

Section  IX.  Judicial  notice 231 

Chapter  XII.  Courts-martial — Concluding  incidents  of  the  trial.  234 

Section  I.  Statements  and  arguments 235 

Section  II.  Findings 236 

Section  III.  Previous  convictions 242 

Section  IV.  Sentences 244 

Chapter  XIII.  Courts-martial — Punishments 256 

Section  I.  Disciplinary  power  of  commanding  officer 256 

Section  II.  Confinement  in  a  penitentiary 261 

Section  III.  War  Department  policy  regarding  punishments.  264 

Section  IV.  Prohibited  punishments 272 

Section  V.  Death — Cowardice — Fraud 273 

Section  VI.  Maximum  limits 274 

Chapter  XIV.  Courts-martial — Procedure  of  special  and  sum- 
mary courts  and  procedure  on  revisions 287 

Section  I.  Special  courts-martial 287 

Section  II.  Summary  courts-martial 287 

Section  III.  Procedure  on  revision 289 

Chapter  XV.  Courts-martial — Records  of  trial 291 

Section  I.  General  courts-martial 291 

Section  II.  Special  courts-martial 300 

Section  III.  Summary  courts-martial 302 

Section  IV.  Correction  of  records  of  trial 302 

Section  V.  Disposition  of  records  of  trial 303 

Section  VI.  Loss  of  records  of  trial 305 

Chapter  XVI.  Courts-martial — Action  by  appointing  or  superior 

authority — Appellate  review 306 

Section  I.  Action  on  the  proceedings 307 

Section  II.  Appellate  review , 324 

Section  III.  Action  after  promulgation  of  sentence ._  329 

XXII 


TABLE   OF   CONTENTS. 

Page. 

Chapter  XVII.  Punitive  articles 332 

Section  I.  Enlistment — Muster — Returns 337 

Section  II.  Desertion — Absence  without  leave 342 

Section  III.  Disrespect — Insubordination — Mutiny 350 

Section  IV.  Arrest — Confinement 365 

Section  V.  War  offenses 377 

Section  VI.  Miscellaneous  crimes  and  offenses 392 

Chapter  XVIII.  Courts  of  inquiry 467 

Section  I.  Constitution 468 

Section  II.  Jurisdiction 468 

Section  III.  Composition 469 

Section  IV.  Powers 470 

Section  V.  Procedure 470 

Section  VI.  Records 474 

Chapter  XIX.  Habeas  corpus 475 

Section  I.  Purpose  of  the  writ 475 

Section  II.  Where  restraint  is  by  the  United  States 475 

Section  III.  Return  to  writ  issued  by  State  court 476 

Section  IV.  Return  to  writ  issued  by  United  States  court—  477 

Section  V.  Writ  issued  in  the  Philippine  Islands 478 

Chapter  XX.  Miscellaneous  and  transitory  provisions 479 

Section  I.  Miscellaneous  provisions 479 

Section  II.  Transitory  provision 484 

Appendices : 

1.  The  Articles  of  War 487 

2.  System  of  courts-martial  for  National  Guard  not  in  the 

service  of  the  United  States 556 

3.  Form  of  order  appointing  a  general  court-martial 558 

4.  Form  of  order  appointing  a  special  court-martial 559 

5.  Charge  sheet 560 

6.  Forms  of  charges 565 

7.  Forms  for  synopses  of  convictions  by  court-martial  (for 

entry  in  service  record) 592 

8.  Suggestions  for  trial  judge  advocates 602 

9.  Forms  for  use  of  president  and  law  member 609 

10.  Form  for  record  of  trial  by  general  court-martial,  and 

revision   proceedings 616 

11.  Form  for  record — Special  court-martial 629 

12.  Form  for  record — Summary  court-martial 633 

13.  Forms  for  sentences 634 

14.  Forms  for  synopses  of  sentences 636 

15.  Forms  for  action  by  reviewing  authority 637 

16.  Court-martial    orders 641 

(a)  General  court-martial 641 

(&)   Special  court-martial 642 

17.  Form  for  interrogatories  and  deposition 644 


TABLE   OF   CONTENTS. 

Appendices — Continued.  Page. 

18.  Form  of  report  of  investigating  officer (549 

19.  Subpoena  for  civilian  witness 651 

20.  Warrant  of  attachment j_; 655 

21.  General  Order  No.   1,  War  Department,  December  1, 

1920 — Exemptions  of  certain   classes  from  jurisdic- 
tion of  special  and  summary  courts-martial 656 

22.  Returns  and  briefs  in  habeas  corpus  proceedings 657 

23.  Voucher :  Civilian  witness  not  in  Government  employ 667 

24.  Voucher:  Civilian  witness  in  Government  employ 670 

25.  Voucher:  Personal  services,  reporter 674 

26.  Report  of  inquest 678 

27.  List  of  common  errors  to  be  avoided 679 


XXIT 


ABBREVIATIONS. 

A.  R -r-   ..    ^.  Army  Regulations,  1913. 

A.  W Articles  of  War,  Code  of  1920. 

Bishop , Bishop's  New  Criminal  Law,  8th  edition. 

Brit,  M.  M.  M British    Manual    of    Military    Law    [Army], 

Ed.  of  1914. 

Clark Clark's  Criminal  Law,  2d  edition. 

Clark  and  Marshall The  Law  of  Crimes,  2d  edition. 

Cyc Cyclopedia  of  Law  and  Procedure. 

Davis A  Treatise  on  the  Military  Law  of  the  United 

States,  2d  edition. 

Digest Digest  of  Opinions  of  Judge  Advocates  General 

of  the  Army,  1912. 

Dudley Military  Law  and  Procedure  of  Courts-Martial, 

1910. 

Greenleaf Law  of  Evidence,  16th  edition. 

Hgs.,  S.  64 Testimony    before    subcommittee    of    Senate 

Military  Affairs  Committee  (66th  Cong.),  on 
hearings  on  Senate  bill  64,  "A  bill  to  estab- 
lish military  justice,"  1919. 

Kernan  Board Report   of  special   War   Department   board — 

Maj.  Gen.  Kernan,  Maj.  Gen.  O'Ryan,  and 
Lieut.  Col.  Ogden — on  "  Courts-Martial  and 
their  Procedure,"  July  17,  1919. 

R.  S Revised  Statutes  of  the  United  States,  1878. 

Stat United  States  Statutes  at  Large. 

Thompson -  Law  of  Trials. 

Wharton Criminal  Law,  9th  edition. 

Wigmore Law  of  Evidence. 

Wigmore,  P.  C Pocket  Code  of  Evidence. 

Winthrop Military  Law  and  Precedents,  2d  edition,  1896. 


xxy 


EXECUTIVE  ORDER. 

By  virtue  of  the  powers  in  me  vested  as  President  of  the 
United  States  of  America,  and  pursuant  to  Article  38  of 
Chapter  II  of  an  Act  of  Congress  entitled  "An  Act  To 
amend  an  Act  entitled  'An  Act  for  making  further  and 
more  effectual  provision  for  the  national  defense,  and  for 
other  purposes',  approved  June  3,  1916,  and  to  establish 
military  justice,"  approved  June  4,  1920  (41  Stat  759),  I 
prescribe  the  following  rules  of  procedure,  including  modes 
of  proof  in  cases  before  courts-martial  and  courts  of  inquiry 
in  the  Army  of  the  United  States  and  direct  them  to  be 
published^for  the  government  of  all  concerned.  These  rules 
shall  be  known  and  designated  as  the  Manual  for  Courts- 
Martial,  and  shall  be  in  force  and  effect  on  and  after  Feb- 
ruary 4,  1921. 

WOODROW  WILSON, 

THE  WHITE  HOUSE, 

17  December,  1920. 


CHAPTER  I. 
MILITARY  JURISDICTION. 


Section  I :  Source  and  kinds  of  military  jurisdiction :  page. 

1.  Source 1 

2.  Kinds 1 

(a)  Military  government 1 

(&)  Martial  law  at  home 2 

(c)    Military  law 2 

Section  II :  Exercise  of  military  jurisdiction : 

3.  Military  tribunals 2 

(a)  Military  commissions  and  provost  courts 2 

(5)  Courts-martial,  general,  special,  and  summary 2 

(c)  Commanding  officers  exercising  disciplinary  pow- 

ers under  A.  W.  104 3 

(d)  Courts  of  inquiry 3 

Section  III :  Persons  subject  to  military  law : 

4.  Classes  enumerated 3 

(a)  Regular  Army,  National  Guard,  Volunteers,  Draft- 
ed Forces 4 

(6)  Cadets 6 

(c)  Marine  Corps 6 

(d)  Medical  Department  of  Navy  serving  with  de- 

tached marines 6 

(e)  Retainers  to  the  camp  and  others 6 

(/)  Persons  under  sentence  of  court-martial 7 


SECTION  I. 
SOURCE  AND  KINDS  OF  MILITARY  JURISDICTION. 

1.  SOURCE. — The  source  of  military  jurisdiction  is  the  Con- 
stitution, the  specific  provisions  relating  to  it  being  found 
in  powers  granted  to  Congress,  in  the  authority  vested  in 
the  President,  and  in  a  provision  of  the  fifth  amendment. 

2.  KINDS. — Military  jurisdiction  is  of  three  kinds,  viz: 
(a)  Military  Government  (the  law  of  hostile  occupation) ; 

that  is,  military  power  exercised  by  a  belligerent  by  virtue 
of  his  occupation  of  an  enemy's  territory,  over  such  terri- 
tory and  its  inhabitants.  This  belongs  to  the  law  of  war 

1 
21358°— 20 1 


3  CHAPTER  I. 

and  therefore  to  the  law  of  nations.  When  a  conquered 
territory  is  ceded  to  the  conqueror,  military  government 
continues  until  civil  government  is  established  by  the  new 
sovereign. 

(b)  Martial  Law  at  Home  (or,  as  a  domestic  fact) ;  by 
which  is  meant  military  power  exercised  in  time  of  war, 
insurrection,  or  rebellion  in  parts  of  the  country  retaining 
their  allegiance,  and  over  persons  and  things  not  ordinarily 
subjected  to  it. 

This  is  an  application  of  the  doctrine  of  necessity  to  a  con- 
dition of  war,  springing  from  the  right  of  national  self-pres- 
ervation. 

(c)  Military  Law;  which  is  the  legal  system  that  regu- 
lates the  government  of  the  military  establishment.    It  is  a 
branch  of  the  municipal  law,  and  in  the  United  States  de- 
rives  its   existence   from   special   constitutional   grants   of 
power.    It  is  both  written  and  unwritten.    The  sources  of 
written  military  law  are  the  Articles  of  War  enacted  by  Con- 
gress June  4,  1920;  other  statutory  enactments  relating  to  the 
military  service;  the  Army  Regulations;  this  official  Manual 
for  Courts-Martial;  and  general  and  special  orders  and  deci- 
sions promulgated  by  the  War  Department  and  by  area, 
department,  post,  and  other  commanders.     The  unwritten 
military  law  is  the  "  custom  of  war,"  consisting  of  customs  of 
the  service,  both  in  peace  and  war. 

This  Manual  deals  primarily  with  military  law. 

SECTION  II. 

EXERCISE  OF  MILITARY  JURISDICTION. 

3.  MILITARY  TRIBUNALS. — Military  jurisdiction  is  exercised 
through  the  following  military  tribunals : 

(a)  Military  Commissions  and  Provost  Courts,  for  the 
trial  of  offenders  against  the  laws  of  war,  and  under  martial 
law,  and  military  government. 

(b)  C  owts-martial — General,  Special,  and  Summary — for 
the  trial  of  offenders  against  military  law.     (A.  W.  3.) 

NOTE.  1. — The  general  court-martial  has  concurrent  Jurisdiction 
with  military  commissions  and  provost  courts  to  try  any  offender  who 


MILITARY   JURISDICTION.  ^f   4 

by  the  law  of  war  is  subject  to  trial  by  military  tribunals  (A.  W. 
13,  15). 

Over  a  few  offenses  general  courts- martial  and  military  commis- 
sions are  expressly,  by  statute,  given  concurrent  jurisdiction  (A.  W. 
15,  80,  81,  82). 

NOTE  2. — It  has  generally  been  held  that  military  commissions 
have  no  jurisdiction  of  such  purely  military  offenses  specified  in  the 
Articles  of  War  as  those  articles  expressly  make  punishable  by  sen- 
tence of  court-martial  (except  where  the  military  commission  is  also 
given  express  statutory  jurisdiction  of  the  offense — A.  W.  80,  81, 
82) ;  and  in  repeated  instances  where  military  commissions  have  as- 
sumed such  jurisdiction  their  proceedings  have  been  declared  invalid 
in  general  orders. 

But  this  rule  has  not  always  been  strictly  observed,  especially  in 
cases  of  such  offenses  as  forcing  a  safeguard  (A.  W.  78)  or  intimida- 
tion, A.  W.  88)  of  persons  bringing  supplies  (2  Winthrop,  2d  Ed.,  p. 
1312,  and  note  1  [Reprint,  1920,  p.  841,  note  19];  Davis,  3d  Ed.,  p. 
311). 

NOTE  3. — For-  the  authority  to  appoint  courts-martial  in  the  Na- 
tional Guard  not  in  the  service  of  the  United  States,  and  the  jurisdic- 
tion and  powers  of  such  courts,  see  sections  102-108,  National  Defense 
Act  of  June  3,  1916,  39  Stat  208,  209;  Appendix  2,  infra. 

(c)  Commanding  Officers  exercising  disciplinary  powers  under 
the  one  hundred  and  fourth  article  of  war. 

(d)  Courts  of  Inquiry,  for  the  examination  of  transac- 
tions of  or  accusations  or  imputations  against  officers  or 
soldiers.     (A.  W.  97.) 

NOTE. — A  court  of  inquiry  will  also  be  ordered,  upon  the  request  of 
the  officer  in  question,  to  inquire  into  the  propriety  of  classifying 
an  officer  in  class  B.  (Sec.  24b,  Chap.  I,  act  of  June  4,  1920;  41  Stat. 
773.) 

The  composition,  jurisdiction,  procedure,  etc.,  of  these 
tribunals  are  treated  in  the  succeeding  chapters  of  this 
Manual. 

SECTION  III. 

PERSONS  SUBJECT  TO  MILITARY  LAW. 

4.  CLASSES  ENUMERATED. — The  following  persons  are  sub- 
ject to  the  Articles  of  War  (A.  W.  2)  : 

NOTE  1. — Wherever  the  following  words  are  used  in  the  Articles  of 
War  or  this  Manual,  they  are  to  be  construed  in  the  sense  indicated 
below,  unless  the  context  shows  that  a  different  sense  is  intended,  viz : 
(a)  The  word  "officer"  shall  be  construed  to  refer  to  a  commis- 


4  CHAPTER  I. 

sioned  officer ;  ( & )  the  word  "  soldier  "  shall  be  construed  as  includ- 
ing a  noncommissioned  officer,  a  private,  or  any  other  enlisted  man; 
(c)  the  word  "company"  shall  be  understood  as  including  a  troop 
or  battery;  and  (d)  the  word  "battalion"  shall  be  understood  as  In- 
cluding a  squadron.  (A.  W.  1.) 

NOTE  2. — Members  of  the  Army  Nurse  Corps,  warrant  officers, 
Army  field  clerks,  and  field  clerks  Quartermaster  Corps,  are  "  officers 
of  the  Army,"  but  not  commissioned  officers,  and,  therefore,  are  not 
included  within  the  definition  of  "  officers  "  contained  in  the  first 
article  of  war.  The  word  "  officers  "  is  used  in  this  Manual  in  the 
same  sense  as  in  the  first  article  of  war,  to  designate  commissioned 
officers  only.  Whenever  in  this  Manual,  it  is  intended  to  embrace 
any  other  persons  within  the  term  "  officers,"  it  is  expressly  so  stated; 
and,  unless  expressly  so  stated,  none  of  these  classes  is  ever  included 
by  the  terms  "  soldiers,"  or  "  enlisted  men,"  either  in  the  Articles  of 
War  or  in  this  Manual. 

(a)  All  officers,  members  of  the  Army  Nurse  Corps,  warrant 
officers,  Army  field  clerks,  field  clerks  Quartermaster  Corps,  and 
soldiers  belonging  to  the  Regular  Army  of  the  United 
States;  all  volunteers,  from  the  dates  of  their  muster  or  ac- 
ceptance into  the  military  service  of  the  United  States ;  and 
all  other  persons  lawfully  called,  drafted,  or  ordered  into 
or  to  duty  or  for  training  in  the  said  service,  from  the  dates 
th.y  are  required  by  the  terms  of  the  call,  draft,  or  order  to 
obey  the  same. 

NOTE. —  (a)  Regular  Army. — Composition  of  the  Regular  Army: 
The  Regular  Army  of  the  United  States  shall  consist  of  the  Infantry, 
the  Cavalry,  the  Field  Artillery,  the  Coast  Artillery  Corps,  the  Air 
Service,  the  Corps  of  Engineers,  the  Signal  Corps,  which  shall  be 
designated  as  the  combatant  arms  or  the  line  of  the  Army;  the  Gen- 
eral Staff  Corps;  the  Adjutant  General's  Department;  the  Inspector 
General's  Department;  the  Judge  Advocate  General's  Department;  the 
Quartermaster  Corps;  the  Finance  Department;  the  Medical  Depart- 
ment; the  Ordnance  Department;  the  Chemical  Warfare  Service;  the 
officers  of  the  Bureau  of  Insular  Affairs;  the  officers  and  enlisted  men 
under  the  jurisdiction  of  the  Militia  Bureau;  the  chaplains;  the 
professors  and  cadets  of  the  United  States  Military  Academy;  the 
present  military  storekeeper;  detached  officers;  detached  enlisted 
men;  unassigned  recruits;  the  Indian  Scouts;  the  officers  and  en- 
listed men  of  the  retired  list;  and  such  other  officers  and  enlisted 
men  as  are  now  or  may  hereafter  be  provided  for.  Except  in  time 
of  war  or  similar  emergency  when  the  public  safety  demands  it,  the 
number  of  enlisted  men  of  the  Regular  Army  shall  not  exceed  280,- 
000,  including  the  Philippine  Scouts.  (Sec.  2,  act  of  June  3,  1916V 
39  Stat.  166,  as  amended  by  sec.  2  of  the  act  of  June  4,  1920,  41 
Stat.  759.) 


MILITARY  JURISDICTION.  ^f    4 

(&)  Volunteers. — The  volunteer  forces  shall  be  subject  to  the  laws, 
orders,  and  regulations  governing  the  Regular  Army  in  so  far  as  such 
laws,  orders,  and  regulations  are  applicable  to  officers  or  enlisted 
men  whose  permanent  retention  in  the  military  service,  either  on  the 
active  list  or  on  the  retired  list,  is  not  contemplated  by  existing  law. 
(Sec.  4,  act  of  Apr.  25,  1914,  38  Stat.  347.) 

(c)  National  Guard. — The  National  Guard,  when  called  as  such 
into  the  service  of  the  United  States,  shall,  from  the  time  they  are 
required  by  the  terms  of  the  call  to  respond  thereto,  be  subject  to  the 
laws  and  regulations  governing  the  Regular  Army,  so  far  as  such 
laws  and  regulations  are  applicable  to  officers  and  enlisted  men  whosfi 
permanent  retention  in  the  military  service,  either  on  the  active  list 
or  on  the  retired  list,  is  not  contemplated  by  existing  law.     (Sec.  101, 
act  of  June  3, 1916,  39  Stat.  208.) 

[NOTE. — The  militia  when  called  into  the  service  of  the  United 
States  is  also  subject  to  military  law.  (35  Stat.  399.)  ] 

(d)  National  Guard  When  Drafted  into  Federal  Service. — Members 
of  the  National  Guard,  when  drafted  into  the  Federal  military  service, 
stand  discharged  from  the  militia,  and  shall  be  subject  to  such  laws 
and  regulations  for  the  government  of  the  Army  of  the  United  States 
as  may  be  applicable  to  members  of  the  Army  whose  permanent  reten- 
tion in  the  Army  is  not  contemplated  by  law.     (Sec.  Ill,  National  De- 
fense Act  June  3,  1916,  39  Stat.  211,  as  amended  by  sec.  49,  Chap.  I, 
act  of  June  4,  1920,  41  Stat.  784.) 

[NOTE. — Members  of  the  National  Guard  and  of  the  militia  and  un- 
organized reserves,  when  drafted  into  the  Federal  service,  are  sub- 
ject to  the  Articles  of  War  and  to  Military  Law,  since  such  articles 
and  law  are  "  laws  and  regulations  for  the  government  of  the 
Army  of  the  United  States  "  which  are  "  applicable  to  members  of 
the  Army  whose  permanent  retention  in  the  military  service  is  not 
contemplated  by  law."] 

(e)  Eeserve  Officers  on  Active  Duty. — To  the  extent  provided  for 
from  time  to  time  by  appropriations  for  this  specific  purpose,  the 
President  may  order  reserve  officers  to  active  duty  at  any  time  and 
for  any  period;  but  except  in  time  of  a  national  emergency  expressly 
declared  by  Congress,  no  reserve  officer  shall  be  employed  on  active 
duty  for  more  than  15  days  in  any  calendar  year  without  his  own 
consent.     A  reserve  officer  shall  not  be  entitled  to  pay  and  allow- 
ances except  when  on  active  duty.    When  on  active  duty  he  shall  re- 
ceive the  same  pay  and  allowances  as  an  officer  of  the  Regular  Army 
of  the  same  grade  and  length  of  active  service,  and  mileage  from  his 
home  to  his  first  station  and  from  his  last  station  to  his  home,  but 
shall  not  be  entitled  to  retirement  or  retired  pay.     (Sec.  37a,  Chap. 
I,  act  of  June  4,  1920,  41  Stat.  776.) 

(f)  The  Enlisted  Reserve  Corps. — The  Enlisted  Eeserve  Corps  be- 
ing a  part  of  the  Army  of  the  United  States  (sec.  1,  Chap.  I,  act  of 
June  4,  1920,  41  Stat.  759),  its  members  when  placed  on  active  duty 


*[    4  CHAPTER  I. 

by  direction  of  the  President,  tinder  section  55b  of  the  National  De- 
fense Act  as  amended  by  section  35,  Chap.  I,  of  the  Army  Reorganiza- 
tion Act  of  June  4,  1920  (41  Stat.  780),  become  subject  to  the  Articles 
of  War,  as  "  persons  lawfully  *  *  *  ordered  into  or  to  duty  or 
for  training  in  "  the  military  service  of  the  United  States  "  from  the 
dates  they  are  required  by  the  terms  of  the  *  *  *  order  to  obey 
the  same."  (Par.  (a),  A.  W.  2.) 

(g)  The  Militia — Unorganized  Reserves — Drafted  Forces. —  The 
militia,  or  unorganized  reserves,  whenever  called,  drafted,  enrolled, 
or  mustered  into  the  Federal  military  service,  become  subject  to  the 
Articles  of  War,  as  "  persons  lawfully  called,  drafted,  or  ordered  into, 
or  to  duty  or  for  training  in,  the  said  service,  from  the  dates  they 
are  required  by  the  terms  of  the  call,  draft,  or  order  to  obey  the 
same."  (A.  W.  2.) 

(6)   Cadets. 

(<?)  Officers  and  soldiers  of  the  Marine  Corps  when  de- 
tached for  service  with  the  armies  of  the  United  States  by 
order  of  the  President.  (A.  W.  2.) 

(d)  Officers  and  enlisted  men  of  the  Medical  Department 
of  the  Navy,  serving  with  a  body  of  marines  detached  for 
service  with  the  Army  in  accordance  with  the  provisions  of 
section   sixteen   hundred   and   twenty-one   of   the    Revised 
Statutes,  shall,  while  so  serving,  be  subject  to  the  rules  and 
articles  of  war  prescribed  for  the  government  of  the  Army 
in  the  same  manner  as  the  officers  and  men  of  the  Marine 
Corps  while  so  serving.     (Act  of  Aug.  29,  1916,  39  Stat. 
573.) 

NOTE. —  (a)  Except  as  provided  in  (c)  and  (d)  supra  or  otherwise 
specifically  provided  by  law,  the  Articles  of  War  do  not  apply  to  any 
person  under  the  United  States  naval  jurisdiction.  (&)  An  officer  or 
soldier  of  the  Marine  Corps  detached  for  service  with  the  Army  may 
be  tried  by  military  court-martial  for  an  offense  committed  against 
the  laws  for  the  government  of  the  naval  service  prior  to  his  detach- 
ment and  for  an  offense  committed  against  the  Articles  of  War  he 
may  be  tried  by  a  naval  court-martial  after  such  detachment  ceases. 
(A.  W.  2.) 

(e)  All  retainers  to  the  camp  and  all  persons  accompany- 
ing or  serving  with  the  armies  of  the  United  States  without 
the  territorial  jurisdiction  of  the  United  States,  and  in  time 
of  war  all  such  retainers  and  persons  accompanying  or  serv- 
ing with  the  armies  of  the  United  States  in  the  field,  both 
within  and  without  the  territorial  jurisdiction  of  the  United 
States  though  not  otherwise  subject  to  the  Articles  of  War. 


MILITARY  JURISDICTION.  ^f    4 

NOTE. — In  addition  to  the  two  classes  (a)  "  retainers  to  the  camp" 
and  (6)  "  persons  serving  with  the  armies  of  the  United  States  in  the 
field  "  who  were  made  subject  to  military  jurisdiction  by  A.  W.  60  of 
the  code  of  1806  (A.  W.  63  of  the  Revision  of  1874),  A.  W.  2  of  the 
Codes  of  1916  and  1920  includes  a  third  class,  viz,  (c)  "persons  ac- 
companying the  armies  of  the  United  States." 

(/)  All    persons    under    sentence    adjudged    by    courts- 
martial. 

NOTE.— Inmates  of  the  Soldiers'  Home  (A.  W.  2(f),  and  R.  3.  4824), 
the  National  Home  for  Disabled  Volunteer  Soldiers  (R.  S.  4835),  all  per- 
sons admitted  to  treatment  in  the  general  hospital  at  Fort  Bayard, 
N.  Mex.,  while  patients  in  said  hospital  (act  of  June  12,  1906,  34  Stat. 
255),  and  all  persons  admitted  to  treatment  in  the  Army  and  Navy 
general  hospital  at  Hot  Springs,  Ark.,  while  patients  in  said  hospital 
(act  of  Mar.  3,  1909,  35  Stat.  748),  are  by  the  statutes  cited  made  sub- 
ject to  the  rules  and  articles  for  the  government  of  the  Ariny  of  the 
United  States;  and  by  A.  W.  2(f),  inmates  of  the  Soldiers'  Home  are 
included  within  the  definition  of  "  persons  subject  to  military  law." 
However,  court-martial  jurisdiction  over  them  has  rarely,  if  ever, 
been  exercised ;  and  the  Judge  Advocate  General  has  held  such  statutes 
unconstitutional  and  a  dead  letter,  because  those  inmates  are  not 
a  part  of  the  land  forces  of  the  United  States,  being  no  part  of  the 
Army,  and  not  supported  by  the  United  States,  but  are  civilians  oc- 
cupying dwellings  and  sustained  by  funds  held  in  trust  for  them 
(Dig.  Ops.  J.  A.  G.,  1912,  p.  1010,  1-A.  Ibid.,  p.  1012,  II). 


CHAPTER  II. 

COURTS-MARTIAL— CLASSIFICATION- 
COMPOSITION. 


Section  I :  Classification :  Page. 

5.  Kinds 9 

(a)   General  courts-martial 9 

(&)  Special  courts-martial 9 

(c)  Summary  courts-martial 9 

Section  II :  Composition : 

6.  Who  competent  to  serve 9 

Exceptions — 

(a)  Accuser  or  witness  for  prosecution 9 

(&)  Chaplains  excepted  by  custom 9 

(c)    Members  of  the  Army  Nurse  Corps 9 

Directions  to  the  appointing  authority 9 

7.  Number  of  members 10 

(a)  General  courts-martial 10 

Reduction  below  quorum — Report  by  trial  judge 

advocate 12 

(&)   Special  courts-martial 12 

Reduction  below  quorum 12 

(c)   Summary  courts-martial 13 

8.  "Officer"  defined 13 

9.  "  In  the  military  service  of  the  United  States  " 13 

(a)  Officer  suspended  from  rank : 13 

(6)  Retired  officers 13 

(c)  Volunteers,  Officers'  Reserve  Corps,  persons  called, 

drafted,  or  ordered  into  service 14 

10.  Marine  officers 14 

11.  No  distinction  between  Regulars  and  other  forces 14 

12.  Rank  of  members 14 

(a)  Trial  by  inferiors  in  rank 14 

(&)  Determination  of  rank  among  Regulars  and  other 

forces 15 

(c)  Rank  of  law  member 15 

13.  Who  may  be  tried.; 15 


COURTS-MARTIAL — CLASSIFICATION — COMPOSITION,  ^f    5 

SECTION  I. 
CLASSIFICATION. 

5.  KINDS. — Courts-martial  shall  be  of  three  kinds  (A.  W. 
3),  viz: 

(a)  General  courts-martial; 

(b)  Special  courts-martial;  and 

(c)  Summary  courts-martial. 

NOTE. — The  classification  of  courts-martial  adopted  by  the  codes 
of  1916  and  1920  is  identical  with  that  made  by  the  act  of  March  2, 
1913  (37  Stat.  722),  which  abolished  garrison  and  regimental  courts- 
martial  and  created  special  courts-martial. 

SECTION  II. 
COMPOSITION. 

6.  WHO  COMPETENT  TO  SERVE. — All  officers  in  the  military 
service  of  the  United  States,  and  officers  of  the  Marine  Corps 
when  detached  for  service  with  the  Army  by  order  of  the 
President,  shall  be  competent  to  serve  on  courts-martial  for 
the  trial  of  any  persons  who  may  lawfully  be  brought  before 
such  courts  for  trial.     (A.  W.  4.) 

EXCEPTIONS. —  (a)  No  officer  shall  be  eligible  to  sit  as  a 
member  of  a  general  or  special  court-martial  when  he  is  the 
accuser  or  a  witness  for  the  prosecution  (A.  W.  8,  9;  see 
chap.  8,  sec.  1,  par.  129) ;  but  when  there  is  only  one  officer 
present  with  a  command  he  shall  be  the  summary  court- 
martial  of  that  command  and  shall  hear  and  determine 
cases  brought  before  him  (A.  W.  10). 

(b)  Chaplains  are  not,  in  practice,  detailed  as  members 
of  courts-martial. 

(c)  Members  of  the  Army  Nurse  Corps,  while  they  have  "rela- 
tive rank"  as  officers  (sec.  10,  Chap.  I,  act  of  June  4,  1920;  41 
Stat.  767),  are  not  commissioned  officers  and  are  not  eligible  for 
appointment  as  members  of  courts-martial. 

Directions  to  the  Appointing  Authority. — When  appointing 
courts-martial  the  appointing  authority  shall  detail  as  members 
thereof  those  officers  of  the  command  who,  in  his  opinion,  are  best 
qualified  for  the  duty  by  reason  of  age,  training,  experience,  and 


^f    7  CHAPTER  IT. 

judicial  temperament;  and  officers  having  less  than  two  years' 
service  shall  not,  if  it  can  be  avoided  without  manifest  injury  to 
the  service,  be  appointed  as  members  of  courts-martial  in  excess 
of  the  minority  membership  thereof.  (A.  W.  4.) 

NOTE  1. — The  code  of  1920  adopts,  in  accordance  with  recommen- 
dations made  by  the  Judge  Advocate  General  and  by  the  Kernan 
Board  of  the  War  Department,  the  principle  embodied  in  the  amend- 
ment to  paragraph  6,  M.  C.  M.,  of  July  14,  1919.  (Changes  No.  5, 
M.  C.  Iff.,  July  14,  1919,  par.  6,  exception  (c).) 

NOTE  2. — Staff  judge  advocates  are  charged  with  the  duty  of  ad- 
vising appointing  authorities  concerning  the  qualifications  of  officers 
of  the  command  for  service  on  courts- martial. 

7.  NUMBER  OF  MEMBERS. — Courts-martial  shall  be  com- 
posed of  the  following  number  of  officers  (A.  W.  5,  6, 7) ,  viz : 

(a)  General  Courts- Martial. — Anv  number  not  less  than  5 
(A.  W.  5). 

NOTE  1. — It  is  not  expected  that  appointing  authorities  will 
usually  detail  on  a  general  court-martial  many  more  members  than 
the  minimum  required  by  the  statute.  An  odd  number  of  members, 
such  as  7  or  9,  including  the  law  member,  will  ordinarily  be  de- 
tailed, to  allow  for  a  few  absences  and  challenges  without  breaking 
the  legally  required  quorum  of  5. 

While  there  is  no  statutory  limitation  upon  the  maximum  number 
of  members  of  a  general  court-martial,  appointing  authorities  will 
not  usually  detail  more  than  9  members;  and  will  not,  in  any  case, 
unless  under  very  exceptional  circumstances,  detail  more  than  13 
members. 

NOTE  2. — The  code  of  1920  omits  the  maximum  limitation  to  13 
members  for  a  general  court-martial  which  had  theretofore  been  re- 
quired, for  the  following  reasons,  as  stated  by  the  Judge  Advocate 
General  in  the  "  Comparative  Print "  of  the  proposed  revision  sub- 
mitted by  him  to  the  Senate  subcommittee: 

"(1)  The  maximum  limitation  serves  no  practical  purpose;  con- 
vening authorities  are  not  likely  to  appoint  an  excessive  number  of 
members  on  the  court.  (2)  The  present  maximum  limitation  in  the 
statute  sometimes  results  in  miscarriage  of  justice,  vide,  e.  g.,  the 
'  the  14-member  cases,'  where  this  office  was  compelled  to  disapprove 
sentences,  manifestly  just  in  themselves,  because  through  one  kind  of 
an  error  or  another  it  appeared  that  more  than  13  members  were  on 
the  detail  for  the  court.  (3)  The  requirement  that  the  maximum 
number  be  always  appointed,  if  practicable,  tends  not  only  to  un- 
duly burden  the  command  by  requiring  the  detail  of  a  large  num- 
ber of  officers  for  service  on  the  court  but  also  toward  a  weakening 
of  the  personnel  of  the  court  by  requiring  the  convening  authority 
to  nil  up  the  stipulated  number  if  possible.  (4)  It  weakens  the  re- 


10 


COURTS-MARTIAL — CLASSIFICATION— COMPOSITION. 

sponsibility  of  the  appointing  authority  for  the  qualifications  of 
the  personnel  of  the  court.  Five,  six,  or  seven  members  actually 
sitting  out  of  a  personnel  of  13  appointed  may  not  be  at  all  the  kind 
of  court  contemplated  by  the  appointing  authority  in  detailing  the 
court,  whereas  if  the  original  detail  were  of  but  7  or  9,  then  the  5,  6, 
or  7  actually  sitting  would  be  more  nearly  substantially  the  same 
court  contemplated  in  the  detail.  (5)  The  experience  of  the  British, 
who  have  no  maximum  limitation  on  their  courts,  but  only  a  mini- 
mum (British  Army  Act,  sees.  47-49),  seems  to  show  that  the  ab- 
sence of  a  maximum  tends,  in  practice,  to  keep  down  the  number  de- 
tailed to  the  court  to  very  little  above  the  minimum,  and  thereby 
operates  to  insure  that  the  court  sitting  at  the  trial  shall  be  substan- 
tially the  same  court  detailed  by  the  appointing  authority." 

While  a  number  less  than  5  can  not  be  organized  as  a 
general  court-martial  or  proceed  with  a  trial,  they  may  per- 
form such  acts  as  are  preliminary  to  the  organization  and 
action  of  the  court.  Less  than  5  members  may  adjourn  from 
clay  to  day,  and  where  5  are  present  and  one  of  them  is  chal- 
lenged, the  remaining  4  may  determine  upon  the  sufficiency 
of  the  objection.  A  court  reduced  to  4  members  and  there- 
upon adjourning  for  an  indefinite  period  does  not  dissolve 
itself.  The  appointing  authority  may  at  any  time  complete 
it  by  the  addition  of  a  new  member  or  members  and  order  it 
to  reassemble  for  business.  (Digest,  p.  158,  LXXV,  B.  3.) 

NOTE  3. — Authority  to  Add  Members. — A  general  court,  though 
reduced  below  5,  is  not  necessarily  to  be  dissolved,  nor  can  it  as- 
sume to  dissolve  itself  or  declare  itself  dissolved.  Such  dissolving  is 
a  function  of  the  convening  commander,  who  is  also  empowered,  in 
his  discretion,  to  continue  the  court  by  adding  a  member,  or  the  re- 
quisite number  of  members  to  bring  it  up  to  5,  and  when  thus  re- 
newed, its  power  as  a  court  is  restored,  and  it  may  legally  proceed 
with  the  trial.  The  adding,  however,  of  new  members  to  courts- 
martial  after  a  trial  has  been  entered  upon  has  been  of  rare  occur- 
rence in  our  practice.  Such  action  is  not  indeed  illegal;  the  added 
member,  provided  the  evidence  taken,  or  material  proceedings  had, 
prior  to  his  appearance,  be  first  read  to  him  from  the  record,  and  he  be 
duly  sworn  (after  the  accused  has  been  afforded  an  opportunity  to 
challenge  him),  may  legally  act  upon  the  court  during  the  remainder 
of  the  trial  and  take  part  in  the  judgment;  and  the  sentence,  if  any, 
imposed  by  the  court  will  be  entirely  legal  and  operative.  But  this 
action  must  be  in  general  of  doubtful  policy,  and  is  not  to  be  resorted 
to  unless  the  demands  of  justice  and  interests  of  the  service  clearly 
require  it.  Where,  for  example,  by  the  death,  disability,  enforced 
absence,  etc.,  of  a  member  or  members,  a  court  is  reduced  below  5, 


f    7  CHAPTER  II. 

in  the  midst  of  an  important  trial,  so  that,  if  not  renewed,  its  pre- 
vious proceedings,  however  extended,  will  go  for  nothing,  and  the 
trial  will  have  to  be  recommenced  by  a  new  court,  to  the  delay  of 
justice,  inconvenience  of  the  service,  detriment  of  discipline,  and 
perhaps  greatly  increased  public  expense, — in  such  a  case  the  author- 
ized commander  will  be  fully  justified  in.  continuing  the  court  by 
the  detail  of  the  requisite  number  of  members.  (1  Winthrop,  2d 
Ed.,  pp.  100-101.) 

If  for  any  reason  a  general  court-martial  is  reduced  below 
five  members  it  will  direct  the  trial  judge  advocate  to  report 
the  facts  to  the  convening  authority  and  wait  his  orders. 
The  report  by  the  trial  judge  advocate  will,  in  all  cases,  be 
made  through  the  commanding  officer  of  the  post,  command, 
or  station  where  the  court  is  sitting,  who  will  indorse  thereon 
the  names  of  a  sufficent  number  of  available  officers  whom  he 
recommends  be  detailed  on  the  court  to  enable  it  to  pro- 
ceed. More  than  enough  to  make  a  quorum  should  be  recom- 
mended where  practicable  in  order  to  provide  for  future  con- 
tingencies, and  so  far  as  can  be  foreseen  the  officers  recom- 
mended should  not  be  liable  to  challenge  in  any  case  to  be 
tried.  If  there  be  no  such  officer  or  officers  available,  the 
commanding  officer  will  so  state.  This  report  will  be  made 
by  wire  whenever  deemed  advisable  in  order  to  prevent  un- 
necessary delay  in  trying  cases.  Similar  action  will  be  taken 
before  trial  by  the  trial  judge  advocate  and  commanding  offi- 
cer whenever  the  former  knows  or  has  good  reason  to  be- 
lieve that  the  court  will  be  reduced  below  a  quorum  at  the 
time  of  trial.  It  is  the  duty  of  commanding  officers  to  keep 
in  touch  with  the  business  before  general  courts-martial  be- 
ing held  within  the  limits  of  their  commands  and  from  time 
to  time  to  take  the  initiative  in  making  recommendations  to 
the  appointing  authority  as  to  relieving  or  adding  members, 
changing  the  trial  judge  advocate,  assistant  trial  judge  advo- 
cate, defense  counsel,  or  assistant  defense  counsel,  or  appoint- 
ing a  new  court,  and  as  to  other  matters  relating  to  .such 
courts,  so  that  they  may  proceed  expeditiously  and  in  co- 
operation with  other  official  business. 

(6)  Special  Courts-martial. — Any  number  of  officer^  not 
less  than  3  (A.  W.  6). 

The  remarks  under  (a)  ante  apply  equally  to  a  special 
court-martial  where  its  membership  is  reduced  below  the 

12 


COURTS-MARTIAL — CLASSIFICATION — COMPOSITION.  ^[    8 

minimum  required  by  law,  except  that  in  the  case  of  a  special 
court-martial  the  report  by  the  trial  judge  advocate  will  be 
made  to  the  convening  authority,  who  will,  without  unneces- 
sary delay,  detail  a  sufficient  number  of  qualified  officers  to 
enable  it  to  proceed,  or  appoint  a  new  court. 

(c)  Summary  Courts-martial. — A  summary  court-martial 
shall  consist  of  1  officer. 

8.  "  OFFICER  "  DEFINED. — The  word  "  officer  "  when  used  in 
the  Articles  of  War  or  this  Manual  means  commissioned  offi- 
cer, unless  the  context  shows  that  a  different  sense  is  intended. 
(See  par.  4,  notes  1  and  2,  supra.)     (A.  W.  1.) 

9.  "  IN  THE  MILITARY  SERVICE  OF  THE  UNITED  STATES." — 
(a)  An  officer  suspended  from  rank  should  not  be  detailed 
to  sit  as  a  member  of  a  court-martial  during  the  period  of 
suspension. 

(b)  Retired  officer. — "In  time  of  war  retired  officers  may  be 
employed  on  active  duty  in  the  discretion  of  the  President,  and 
when  so  employed  they  shall  receive  the  full  pay  and  allowances 
of  their  grades,"  (subpar.  3,  sec.  127a,  Chap.  I,  act  of  June  4, 
1920;  41  Stat.  785).  "  The  Secretary  of  War  may  assign  retired 
officers  of  the  Army,  with  their  consent,  to  active  duty  in  recruit- 
ing, for  service  in  connection  with  the  organized  militia  in  the 
several  States  and  Territories  upon  the  request  of  the  governor 
thereof,  as  military  attaches,  upon  courts-martials,  courts  of  in- 
quiry and  boards,  and  to  staff  duties  not  involving  service  with 
troops;  and  such  officers  while  so  assigned  shall  receive  the  full 
pay  and  allowances  of  their  respective  grades."  (Act  of  Apr.  23, 
1904,  33  Stat.  264.)  "  That  when  by  reason  of  the  movement  of 
troops  a  post  is  temporarily  left  without  its  regular  garrison  and 
with  no  commissioned  officer  except  of  the  Medical  Reserve  Corps 
on  duty  thereat,  the  Secretary  of  War  may  assign  a  retired  officer 
of  the  Army,  with  his  consent,  to  active  duty  in  charge  of  such 
post,  The  officer  so  assigned  shall  perform  the  duties  of  com- 
manding officer  and  also  any  necessary  staff  duties  at  such  post, 
and  shall,  while  in  the  performance  of  such  duties,  receive  the 
full  pay  and  allowances  of  his  grade,  subject  to  the  limitations 
imposed  by  the  act  of  March  2,  1905,  and  the  act  of  June  12, 
1906,  which  limitations  shall  include  the  grades  of  brigadier 


13 


If    10  CHAPTER  IT. 

general,  major  general,  and  lieutenant  general "  (act  of  Aue.  29, 
1916,  39  Stat  627.) 

(c)  Volunteers  become  eligible  for  duty  as  members  of 
courts-martial  from  the  dates  of  their  muster  or  accept- 
ance into  the  military  service  of  the  United  States  (A.  W.  2) , 
reserve  officers  ordered  to  active  duty  by  the  President  (sec.  37a, 
Chap  I,  act  of  June  4,  1920;  41  Stat.  776),  and  all  other  officers 
lawfully  called,  drafted,  or  ordered  into  or  to  duty  or  for 
training  in  the  said  service  from  the  date  they  are  required 
by  the  terms  of  the  call,  draft,  or  order  to  obey  the  same  (A. 
W.  2). 

10.  MARINE  OFFICERS. — Marine  officers  can  be  detached  for 
duty  with  the  Army  only  by  order  of  the  President  (R.  S. 
1619,  1621),  and  their  eligibility  to  sit  as  members  of  courts- 
martial  to  try  persons  subject  to  military  law  continues  only 
during  the  time  they  are  serving  under  such  order.    When 
any  part  of  the  Marine  Corps  is  present  with  the  Army  and 
engaged  in  a  common  enterprise  with  it,  without  an  order 
of  the  President  detaching  it  for  service  with  the  Army,  the 
case  is  one  of  cooperation  and  not  of  incorporation,  and  in 
such  a  case  no  officer  of  the  Marine  Corps  can  exercise  com- 
mand over  the  Army  any  more  than  a  naval  officer  can 
when  some  part  of  the  Navy  is  cooperating  with  the  Army, 
and  the  converse  is  true  of  Army  officers  cooperating  with 
the  Marine  Corps.     (28  Op.  Atty.  Gen.,  15.) 

11.  No    DISTINCTION    BETWEEN    REGULARS    AND    OTHER 
FORCES. — No  distinction  now  exists  in  the  matter  of  eligi- 
bility for  court-martial  duty  among  the  various  classes  of 
officers  in  the  military  service  of  the  United  States  for  the 
trial  of  any  person  subject  to  military  law.     (Act  of  Apr. 
25, 1914,  38  Stat.  348;  A.  W.  4.) 

12.  RANK  or  MEMBERS. —  (a)  The  order  appointing  a  gen- 
eral or  a  special  court-martial  should  name  the  members  in 
order  of  rank,  and  they  will  sit  according  to  rank.     (See, 
however,  as  to  law  member,  par.  83,  infra.) 

In  no  case  shall  an  officer,  when  it  can  be  avoided,  be  tried 
by  officers  inferior  to  him  in  rank.  (A.  W.  16.)  This  pro- 
vision is  not  prohibitory  but  directory  only  upon  the  conven- 


14 


COURTS-MARTIAL — CLASSIFICATION — COMPOSITION,  If    13 

ing  authority.  Its  effect  is  to  leave  to  the  discretion  of  that 
officer,  as  the  conclusive  authority  and  judge,  the  determina- 
tion of  the  question  of  the  rank  of  the  members,  with  only 
the  general  instruction  that  superiors  in  rank  to  the  accused 
shall  be  selected,  so  far  as  the  exigencies  and  interests  of  the 
service  will  permit.  (Mullan  v.  U.  S.,  140  U.  S.,  240 ;  Swaini 
v.  IT.  S.,  165  U.  S.,  553,  559-560.) 

(b)  Rank  among  officers  of  the  Regular  Army,  reserve 
officers,  officers  of  the  National  Guard,  forces  drafted  or  called 
into  the  service  of  the  United  States,  and  volunteers,  is  de- 
termined according  to  the  rules  laid  down  in  A.  W.  119  and 
subparagraph  8  of  section  127a  of  Chapter  I  of  the  act  of  June  4, 
1S20  (41Stat.  785). 

(c)  The  law  member  of  a  general  court-martial  will  ordi- 
narily be  of  field  rank. 

If  no  properly  qualified  officer  of  field  rank  is  available  from  his 
command,  the  appointing  authority  will  report  the  facts  to  higher 
authority  (by  wire,  if  necessary  in  order  to  avoid  delay) . 

The  order  appointing  a  general  court-martial  will  specifically 
designate  the  law  member  as  such.  (See  form,  Appendix  3.) 

13.  WHO  MAY  BE  TRIED. — (a)  For  the  jurisdiction  of 
general,  special,  and  summary  courts-martial  as  to  persons 
see  Chapter  IV,  Jurisdiction. 

(b)  In  addition  to  the  persons  subject  to  military  law 
enumerated  in  Chapter  I,  Section  III,  ante,  the  general 
court-martial  also  has  jurisdiction  over  any  other  person 
who  by  the  law  of  war  is  subject  to  trial  by  military  tri- 
bunals. (A.  W.  12;  see  Chap.  IV,  Jurisdiction.) 


10 


CHAPTER  III. 
COURTS-MARTIAL— BY  WHOM  APPOINTED. 


Section  I :  General  courts-martial :  Page- 

14.  Authorities  enumerated,  (a)  to  (i) —        16 

Exceptions — 

(1)  Appointing  authority  as  accuser  or  prosecutor. 

(2)  Superintendent  of  Military  Academy— In  offi- 

cers'  cases I? 

15.  Power  of  President  to  appoint 

16.  Same  for  Superintendent  of  Military  Academy 

17.  "  Accuser  "  or  "  prosecutor  "  denned 18 

18.  Power  to  appoint  an  attribute  of  command 

19.  Rank  of  appointing  authority 20 

20.  Power  of  appointing  authority — How  limited 20 

Section  II:  Special  courts-martial: 

21.  Authorities  enumerated,  (a)   to  (i) 20 

Exception — Appointing  authority  as  accuser  or  prose- 
cutor   20 

22.  Commanding  officer  as  accuser  or  prosecutor 21 

23.  Rank  of  appointing  authority 21 

24.  Commanding  officer  as  member 21 

Section  III :  Summary  courts-martial : 

25.  Authorities  enumerated,  (a)  to  (7i) 21 

26.  When  more  than  one  officer  present 22 

27.  When  but  one  officer  present 22 

28.  "Detachment"  defined 22 

29.  Power  of  brigade  commanders 23 

Section  IV:  Trial  judge  advocate: 

30.  Power  to  appoint 24 

31.  Duties 24 

Section  V:  Defense  counsel: 

31a.  Power  to  appoint 24 

31b.  Assistant  defense  counsel — Appointment 24 

31c.  Duties    of    defense    counsel    and    assistant    defense 

counsel 24 


SECTION  I. 
GENERAL  COURTS-MARTIAL. 

14.  AUTHORITIES  ENUMERATED. — General  courts-martial 
may  be  appointed  by  the  following  authorities  by  virtue  of  the 
statute  (A.  W.  8),  viz: 

16 


OOUKTS-ltARTIAL — BY  WHOM  APPOINTED.          r    15 

(a)  The  President  of  the  United  States. 

(b)  The  commanding  officer  of  a  territorial  division. 

(c)  The  commanding  officer  of  a  territorial  depart- 

ment. 

(d)  The  Superintendent  of  the  Military  Academy. 

(e)  The  commanding  officer  of  an  army. 

(/)  The  commanding  officer  of  an  army  corps. 
(<7)  The  commanding  officer  of  a  (tactical)  division. 
(k)  The  commanding  officer  of  a  separate  brigade, 
(t)  The  commanding  officer  of  any  district  or  of  any 
force  or  body  of  troops,  when  empowered  by 
the  President  to  do  so. 

EXCEPTIONS. — (1)  When  any  of  the  foregoing  command- 
ers is  the  accuser  or  the  prosecutor  of  the  person  or  per- 
sons to  be  tried,  the  court  shall  be  appointed  by  superior  com- 
petent authority;  (2)  the  superintendent  of  the  Military 
Academy  is  not  empowered  to  convene  a  general  court-mar- 
tial for  the  trial  of  an  officer.  (A.  W.  12.) 

XOTZ  1. — Other  commanding  officers  are  from  time  to  time  empow- 
cred  by  the  President,  by  General  Orders,  to  convene  general  courts- 
martial. 

In  such  eases,  for  convenience,  reference  should  be  made  to  such 
general  orders,  in  records  of  trials  by  such  courts.  Bnt  snch  refer- 
ence is  not  necessary  as  to  their  validity,  since  judicial  notice  will 
be  taken  of  such  general  orders.  (See,  infra,  par.  289.) 

NOTE  2. — For  the  authority  to  appoint  general  courts-martial  in  the 
National  Guard  not  in  the  service  of  the  United  States,  see  section 
103,  act  of  June  3, 1916,  39  Stat  206,  Appendix  2,  infra. 

15.  POWER  OF  THE  PRESIDENT  TO  APPOINT. — In  addition  to 
the  general  statutory  authority  conferred  upon  the  Presi- 
dent by  A.  W.  S  to  appoint  general  courts-martial  he  is  also 
empowered  to  do  so  by  virtue  of  being  Commander  in  Chief 
of  the  Army  (Swaim  v.  U.  a,  165  U.  S.,  553)  and  in  the 
particular  case  provided  for  by  R.  S.  1230. 

NOTE. — When  any  officer,  dismissed  by  order  of  the  President,  makes, 
in  writing,  an  application  for  trial,  setting  forth,  under  oath,  that  he 
has  been  wrongfully  dismissed,  the  President  shall,  as  soon  as  the 
necessities  of  the  service  may  permit,  convene  a  court-martial  to  try 
such  officer  on  the  charges  on  which  he  shall  have  been  dismissed. 
And  if  a  court-martial  is  not  so  convened  within  sir  months  from  the 
presentation  of  such  application  for  trial,  or  if  such  court,  being  con- 
vened, does  not  award  dismissal  or  death  as  the  punishment  of  such 

2135S0— 20 _  17 


^f    16  CHAPTER  III. 

officer,  the  order  of  dismissal  by  the  President  shall  be  void.  (II.  S. 
1230.)  But  a  recent  decision  of  the  Court  of  Claims  holds  Section 
1230,  B.  S.,  inoperative  (Wallace  v.  U.  S.,  No.  34104,  Court  of  Claims, 
Mar.  22,  1920.)  See  also  A.  W.  118. 

16.  SUPERINTENDENT   OF   THE   MILITARY   ACADEMY.— The 
superintendent  of  the  Military  Academy  was  authorized  by 
R.  S.  1326  to  convene  general  courts-martial  for  the  trial  of 
cadets  only ;  the  act  of  March  2, 1913  (37  Stat,  722) ,  extended 
this  authority  to  include  all  persons  (except  officers)  subject 
to  military  law  under  his  command.    This  authority  was  con- 
tinued in  the  codes  of  1916  and  1920.     (A.  W.  8,  12.) 

17.  "ACCUSER  "    OR    "  PROSECUTOR." —  Whether    the    com- 
mander who  convened  the  court  is  to  be  regarded  as  the 
"  accuser  or  prosecutor  "  where  he  has  had  to  do  with  the 
preparing  and  preferring  of  the  charges,  is  mainly  to  be  de- 
termined by  his  animus  in  the  matter.    He  may,  like  any 
other  officer,  initiate  an  investigation  of  an  officer's  conduct 
and  formally  prefer,  as  his  individual  act,  charges  against 
such  officer ;  or  by  reason  of  a  personal  interest  adverse  to  the 
accused  he  may  adopt  practically  as  his  own  charges  initiated 
by  another ;  in  which  cases  he  is  clearly  the  accuser  or  prose- 
cutor within  the  article.    On  the  other  hand,  it  is  his  duty  to 
determine,  when  the  facts  are  brought  to  his  knowledge, 
whether  an  officer  within  his  command  charged  with  a  mili- 
tary offense  shall  in  the  interest  of  discipline  and  for  the 
good  of  the  service  be  brought  to  trial.    To  this  end  he  may 
(after  proper  investigation  has  been  had  and  after  receiving 
the  advice  of  his  staff  judge  advocate  thereon)   formally  re- 
fer for  trial  charges  preferred  against  such  officer  by  an- 
other; or  when  the  facts  of  an  alleged  offense  are  communi- 
cated to  him,  he  may  direct  a  suitable  officer,  as  a  member  of 
his  staff,  or  the  proper  commander  of  the  accused,  to  investi- 
gate the  matter,  with  a  view  to  formulating  and  preferring 
such  charges  as  the  facts  may  warrant,  and  after  having 
been  regularly  investigated  and  submitted  to  him,  he  may 
refer  them  for  trial  as  in  other  cases ;  all  this  he  may  do  in 
the  proper  performance  of  his  official  duty  without  becoming 
the  accuser  or  prosecutor  in  the  case.    On  the  other  hand,  it  is 
not  essential  that  the  commander  who  convenes  the  court- 
martial  for  the  trial  of  an  officer  should  sign  the  charges  to 

18 


COUBTS-MARTIAL — BY  WHOM  APPOINTED.          If    18 

make  him  the  "  accuser  or  prosecutor  "  within  the  meaning  of 
this  article.  Nor  is  the  fact  that  they  have  been  signed  by 
another  conclusive  on  the  question  whether  the  convening 
commander  is  the  actual  accuser  or  prosecutor.  The  objec- 
tion that  such  commander  is  such,  calls  in  question  the  legal 
constitution  of  the  court,  and  while  such  objection,  if  known 
or  believed  to  exist,  should  regularly  be  interposed  at  or  be- 
fore the  arraignment,  it  may  be  taken  during  the  trial  at  any 
stage  of  the  proceedings.  If  not  admitted  by  the  prosecution 
to  exist,  the  accused  is  entitled  to  prove  it  like  any  other 
iasue.  (For  decisions  as  to  when  the  convening  authority  is 
the  accuser  or  prosecutor,  see  Digest,  p.  155,  LXXII,  I,  1,  a; 
p.  155,  LXXII,  I,  2;  p.  156,  LXXII,  I,  3,  a;  p.  156,  LXXII, 

I,3,a(l)0       . 

18.  POWER  TO  APPOINT  AN  ATTRIBUTE  OF  COMMAND. — As 
the  authority  to  appoint  general  courts-martial  is  an  at- 
tribute of  command,  a  commanding  officer  can  not  delegate 
to  another  officer,  such  as  his  adjutant  or  any  other  staff 
officer  or  subordinate,  the  authority  to  appoint  a  court,  detail 
an  additional  member,  or  relieve  a  member,  or  to  appoint  or 
relieve  the  trial  judge  advocate  or  defense  counsel,  or  assist- 
ants to  either.  Where  the  authority  to  appoint  a  general 
court-martial  is  vested  in  a  commanding  officer,  he  retains 
that  authority,  wherever  he  may  be,  so  long  as  he  continues 
to  be  such  commanding  officer.  In  the  absence  of  orders  or 
legislation,  personal  presence  within  the  territorial  limits  of 
his  area  or  department  is  not  essential  to  the  validity  of  com- 
mands given  by  an  area  or  department  commander  to  be 
executed  within  the  area  or  department.  Therefore  he  may 
appoint  a  court-martial  while  absent  from  his  area  or  de- 
partment, if  he  continues  to  exercise  command.  But  an  area 
or  department  commander  detached  and  absent  from  his 
command  for  any  considerable  period  by  reason  of  having 
received  a  leave  of  absence  (whether  of  a  formal  or  informal 
character),  or  having  been  placed  upon  a  distinct  and  sepa- 
rate duty,  is  held  to  be  in  a  status  incompatible  with  a  full 
and  legal  exercise  of  such  authority,  and  therefore  incom- 
petent during  such  absence  to  order  a  general  court-martial 
as  an  area  or  department  commander,  even  though  no  other 


19 


If    19  CHAPTER  III. 

officer  has  been  assigned  or  has  succeeded  to  the  command  of 
the  area  or  department.     (Digest,  p.  153,  LXXII,  A.) 

19.  RANK  OF  APPOINTING  AUTHORITY. — The  power  of  the 
various  commanders  enumerated  in  paragraph  14,  supra,  to 
appoint  general  courts-martial  is  independent  of  their  rank, 
but  no  officer  other  than  those  enumerated  can  appoint  a 
general  court-martial  no  matter  what  his  rank  may  be.    An 
officer  who  succeeds  to  any  command  or  duty  stands  in  regard 
to   his   duties   in   the   same   situation   as   his   predecessor. 
In  the  event  of  the  death  or  disability  of  the  permanent 
commander  of  a  territorial  area  or  department,  or  his  tem- 
porary absence  from  the  limits  of  his  command,  the  senior 
line  officer  present  and  on  duty  therein  will  exercise  the 
command  of  the  area  or  department,  unless  otherwise  ordered, 
until  relieved  by  proper  authority. 

20.  POWER  OF  APPOINTING  AUTHORITY,  How  LIMITED. — An 
officer  who  has  power  to  appoint  a  court-martial  may  control 
its  existence,  dissolve  it,  and  determine  the  cases  to  be  re- 
ferred to  it  for  trial,  but  he  can  not  control  the  exercise  by 
the  court  of  powers  vested  in  it  by  law. 

SECTION  II. 
SPECIAL  COURTS-MARTIAL. 

21.  AUTHORITIES  ENUMERATED.  —  Special   courts  -  martial 
may  be  appointed  by  the  following  authorities  (A.  W.  9), 
viz: 

(a)  The  commanding  officer  of  a  district. 

(b)  The  commanding  officer  of  a  garrison. 

(c)  The  commanding  officer  of  a  fort. 

(d )  The  commanding  officer  of  a  camp. 

(e)  The  commanding  officer  of  any  place  other  than 

(a),  (&) ,  (c),  and  (d)  where  troops  are  on  duty. 
(/)  The  commanding  officer  of  a  brigade. 
(g)  The  commanding  officer  of  a  regiment. 
(A)  The  commanding  officer  of  a  detached  battalion. 
(i)  The  commanding  officer  of  any  other  detached 

command. 

EXCEPTION. — When  any  one  of  the  foregoing  commanding 
officers  is  the  accuser  or  the  prosecutor  of  the  person  or  per- 


20 


COURTS-MAKTIAL BY  WHOM  APPOINTED.          If    22 

sons  to  be  tried,  the  court  shall  be  appointed  by  superior 
authority. 

When  any  superior  authority  deems  it  desirable,  he  may 
appoint  a  special  court-martial  for  any  part  of  his  com- 
mand. 

NOTE. — For  the  authority  to  appoint  special  courts-martial  in  the 
National  Guard  not  in  the  service  of  the  United  States,  see  section 
104,  act  of  June  3,  1916,  39  Stat.  208 ;  Appendix  2,  infra. 

22.  COMMANDING  OFFICER  AS  "ACCUSER  OR  PROSECUTOR." — 
The  rules  laid  down  in  Section  I,  paragraph  17,  supra,  for 
determining  when  a  commander  is  the  accuser  or  prosecutor 
apply  equally  to  trials  by  special  courts-martial.     When  a 
superior  appoints  a  court  because  of  such  disqualification  on 
the  part  of  a  subordinate  commanding  officer,  he  will  specify 
in  the  order  the  names  of  the  person  or  persons  to  be  tried, 
and  the  court  will  adjourn  sine  die  upon  the  completion  of 
the  last  case"  which  it  is  ordered  to  try. 

23.  RANK  OF  APPOINTING  AUTHORITY. — As  in  the  case  of 
general  courts-martial,  the  test  of  the  power  to  appoint  a 
special  court-martial  is  whether  the  officer  is  one  of  the  com- 
manders designated  in  A.  W.  9.    Such  authority  is  an  inci- 
dent of  his  power  to  command,  and  is  independent  of  his 
rank. 

24.  COMMANDING  OFFICER  AS  MEMBER. — When  but  two  offi- 
cers in  addition  to  the  commanding  officer  are  available  for 
detail  on  a  special  court-martial,  the  commanding  officer  will 
not  detail  himself  as  a  member  of  such  court.     In  such  a 
case,  if  superior  authority  desires  to  appoint  a  special  court- 
martial  for  such  command,  the  commanding  officer,  if  other- 
wise eligible,  may  be  appointed  as  a  member  thereof. 

SECTION  III. 
SUMMARY  COURTS-MARTIAL. 

25.  AUTHORITIES  ENUMERATED. — Summary  courts-martial 
may  be  appointed  by  the  following  authorities  (A.  W.  10), 
viz: 

(a)  The  commanding  officer  of  a  'garrison. 

(b)  The  commanding  officer  of  a  fort. 

(c)  The  commanding  officer  of  a  camp. 


21 


If   26  CHAPTER  III. 

(d)  The  commanding  officer  of  any  other  place  not 

enumerated  in  (a),  (6),  and  (c)  where  troops 
are  on  duty. 

(e)  The  commanding  officer  of  a  regiment. 

(/)  The  commanding  officer  of  a  detached  battalion. 
(g)  The  commanding  officer  of  a  detached  company. 
(A)   The  commanding   officer   of   any  other   detach- 
ment not  enumerated  in  (/)  and  (g). 

A  summary  court-martial  may  in  any  case  be  appointed 
by  superior  authority  when  by  the  latter  deemed  desirable. 

NOTE. — For  the  authority  to  appoint  summary  courts-martial  in  the 
National  Guard  not  in  the  service  of  the  United  States,  see  section 
105,  act  of  June  3,  1916,  39  Stat.  208 ;  Appendix  2,  infra. 

26.  WHEN  MORE   THAN   ONE   OFFICER  PRESENT. — When 
more  than  one  officer  is  present  the  summary  court-martial 
will  be  appointed  from  staff  officers  or  available  line  officers 
junior  to  the  commanding  officer.     The  commanding  officer 
will  not  in  such  cases  designate  himself  as  the  summary 
court-martial.    The  senior  officer  on  duty  at  a  recruiting  sta- 
tion is  a  "  commanding  officer  "  in  the  sense  of  the  last  pre- 
ceding sentence  when  there  is  another  officer  present  at  the 
same  station,  even  though  the  latter  may  be  serving  at  an 
auxiliary  or  branch   station.      (Bui.   46,  War  Dept.,   Oct. 
24,  1914.) 

27.  WHEN  BUT  ONE  OFFICER  PRESENT. — When  but  one 
officer  is  present  with  a  command  he  shall  be  the  summary 
court-martial  of  that  command  and  shall  hear  and  determine 
cases  brought  before  mm.  (A.  \V.  10.)     In  such  a  case,  no 
order  appointing  the  court  will  be  issued,  but  the  officer  will 
enter  on  the  record  that  he  is  the  "  only  officer  present  with 
the  command."     (As  to  retired  officers,  see  par.  9,  &,  supra.) 

28.  "  DETACHMENT  "  DEFINED. — A  battalion  or  other  unit 
is  "  detached  "  when  isolated  or  removed  from  the  immediate 
disciplinary  control  of  a  superior  of  the  same  branch  of 
the  service  in  such  a  manner  as  to  make  its  commander 
primarily  the  one  to  be  looked  to  by  superior  authority  as 
the  officer  responsible  for  the  administration  of  the   dis- 
cipline of  the  enlisted  men  composing  the  same.    The  term 


22 


COURTS-MARTIAL — BY  WHOM  APPOINTED.         If    29 

is  used  in  a  disciplinary  sense,  and  is  not  necessarily  limited 
to  what  constitutes  detachment  in  a  physical  or  tactical  sense. 
The  commanding  officers  of  such  units  as  field  signal  bat- 
talions, aero  squadrons,  field  bakeries,  and  ammunition,  en- 
gineer, or  sanitary  trains,  if  their  respective  commands  are 
independent,  except  in  so  far  as  they  constitute  parts  of  a 
division,  and  if  their  commanders  are  responsible  directly  to 
the  division  commander  for  the  maintenance  of  discipline 
in  those  commands,  are  competent  to  appoint  summary 
courts  for  the  same,  subject  to  the  power  of  the  division  com- 
mander to  appoint  summary  courts  for  all  subordinate  or- 
ganizations and  detachments  under  his  command  if  by  him 
deemed  advisable. 

So  likewise  the  various  service  schools,  such  as  The 
Cavalry  School  at  Fort  Riley,  though  they  may  be  lo- 
cated within  .the  immediate  limits  of  higher  commands, 
constitute  "  detachments  "  within  the  meaning  of  A.  W.  10, 
and  the  commandants  thereof  have  power  to  appoint  sum- 
mary courts-martial  for  the  trial  of  enlisted  men  connected 
with  such  schools,  subject  to  the  right  of  the  commanding 
officer  of  the  garrison  or  fort  to  appoint  such  courts  when  by 
him  deemed  desirable.  (Bui.  13,  War  Dept.,  1913,  p.  7.) 

29.  POWER  OF  BRIGADE  COMMANDERS. — A  brigade  com- 
mander is  responsible  for  the  instruction,  tactical  efficiency 
and  preparedness  for  war  service  of  his  brigade.  If  the 
brigade  is  serving  at  one  garrison  or  post  he  has,  by  virtue 
of  his  power  as  such  garrison  or  post  commander,  authority 
to  retain  within  himself  the  appointing  power  of  all  sum- 
mary courts  within  his  command,  but  if  he  does  not  exercise 
the  authority  which  is  vested  in  him  by  statute  he  allows  the 
appointing  power,  including  the  power  of  review,  to  pass  to 
regimental  (and  detachment)  commanders.  (Digest,  p.  580, 
XVI,  E,  7.)  If  the  brigade  is  acting  as  a  tactical  unit  in  the 
field,  he  may  as  superior  authority,  appoint  summary  courts- 
martial  for  his  command  whenever  he  deems  it  desirable,  but 
such  authority  will  ordinarily  be  exercised  by  the  regimental 
commanders. 


23 


If    30  CHAPTER  Til. 

SECTION  IV. 
TRIAL  JUDGE  ADVOCATE. 

30.  POWER    TO    APPOINT. — For    each    general    or    special 
court-martial  the  authority  appointing  the  court  shall  ap- 
point a  trial  judge  advocate,  and  for  each  general  court-mar- 
tial one  or  more  assistant  trial  judge  advocates  when  neces- 
sary.    (A.W.  11.) 

31.  DUTIES  OF  Trial  JUDGE  ADVOCATE  AND  ASSISTANT  Trial 
JUDGE  ADVOCATES. — For  discussion   of   duties  of   the  trial 
judge  advocate  and  his  assistants  see  Chapter  VII,  Sections 
II  and  III. 

SECTION  V. 

DEFENSE  COUNSEL. 

31a.  Power  to  Appoint. — For  each  general  or  special  court- 
martial  the  authority  appointing  the  court  shall,  in  the  convening 
order,  appoint  a  defense  counsel,  and  for  each  general  court- 
martial  one  or  more  assistant  defense  counsel  when  necessary. 
(A.  W.  11.) 

NOTE. — The  code  of  1920  introduced  the  statutory  requirement  that 
defense  counsel  for  general  and  special  courts-martial,  together  with 
assistant  defense  counsel  where  deemed  necessary  by  the  appointing 
authority  for  general  courts-martial,  must  be  appointed  at  the  same 
time  and  in  the  same  manner  as  trial  judge  advocates  and  assistant 
trial  judge  advocates.  This  embodied  in  statutory  form  the  prin- 
ciple of  the  amendment  of  paragraph  108,  Manual  for  Courts-Martial 
of  July  14,  1919. 

31b.  Assistant  Defense  Counsel — Appointment. — Unless  it  can 
not  be  done  without  manifest  injury  to  the  service,  assistant  de- 
fense counsel  will  be  appointed  for  a  general  court-martial  when- 
ever an  assistant  trial  judge  advocate  is  appointed,  'if  more  than 
one  assistant  trial  judge  advocate  is  appointed,  a  corresponding 
number  of  assistant  defense  counsel  will,  as  a  rule,  be  appointed. 

31c.  Duties  of  Defense  Counsel  and  Assistant  Defense  Coun- 
sel.— For  discussion  of  the  duties  of  the  defense  counsel  and  his 
assistants  see  Chapter  VII,  Section  IV. 


24 


CHAPTER  IV. 
COURTS-MARTIAL—JURISDICTION. 


Section  I:  Jurisdiction  in  general:  Page. 

32.  Jurisdiction  defined 25 

33.  Courts-martial  not  part  of  Federal  judicial  system 26 

33a.  Their  nature 26 

34.  Conditions  necessary  to  show  jurisdiction 27 

35.  Procedure  when  military  and  civil  jurisdiction  concur- 

rent    28 

36.  Can  not  be  divested  by  act  of  accused 29 

37.  Not  territorial 29 

38.  When  terminated — Rule  stated 30 

Exceptions,  (a)  to  (e) 30 

Section  II :  Jurisdiction  of  general  courts-martial : 

39.  Persons  and  offenses 31 

40.  Limits  of  punishment — Exceptions,  (a)  to  (e) 32 

Section  III :  Jurisdiction  of  special  courts-martial : 

41.  Persons  and  offenses 33 

41a.  Second  proviso  to  the  twelfth  article  of  war 34 

42.  Limits  of  punishment 35 

Section  IV :  Jurisdiction  of  summary  courts-martial : 

43.  Persons  and  offenses 35 

44.  Limits  of  punishment 36 

Section  V :  Jurisdiction  of  other  military  tribunals : 

45.  When  concurrent  with  courts-martial 36 


SECTION  I. 
JURISDICTION  IN  GENERAL. 

32.  JURISDICTION  DEFINED. — The  jurisdiction  of  a  court- 
martial  is  its  power  to  try  and  determine  cases  legally 
referred  to  it  and,  in  case  of  a  finding  of  guilty,  to  award  a 
punishment  for  the  offense  within  its  prescribed  limits. 
Being  courts  of  special  and  limited  jurisdiction,  their  organi- 
zation, powers,  and  mode  of  procedure  must  conform  to 
all  the  statutory  provisions  relating  to  their  jurisdiction. 
For  the  source  and  kinds  of  military  jurisdiction  and  per- 
sons subject  to  military  law,  see  Chapter  I,  Sections  I 
and  III. 

25 


^[33  CHAPTER  17. 

33.  COURTS-MARTIAL  NOT  PART  OF  ORDINARY  FEDERAL  JUDI- 
CIAL SYSTEM. — While  courts-martial  have  no  part  of  the  juris- 
diction set  apart  under  the  article  of  the  Constitution  which 
relates  to  the  judicial  power  of  the  United  States,  they  have 
an  equally  certain  constitutional  source.  They  are  established 
under  the  constitutional  power  of  Congress  to  make  rules  for 
the  government  and  regulation  of  the  land  forces  of  the 
United  States,  and  are  recognized  in  the  provisions  of  the 
fifth  amendment,  expressly  exempting  "  cases  arising  in  the 
land  and  naval  forces  "  from  the  requirement  as  to  present- 
ment and  indictment  by  grand  jury.  They  are  tribunals  ap- 
pointed by  military  orders  issued  under  authority  of  law. 
The  power  to  appoint  them,  as  well  as  the  power  to  act  upon 
their  proceedings,  is  vested  by  law  in  certain  commanding 
officers.  Their  jurisdiction  is  entirely  penal  or  disciplinary. 
They  have  no  power  to  adjudge  damage  for  personal  injuries 
or  private  wrongs,  nor  to  collect  private  debts.  Their  judg- 
ments upon  subjects  within  their  limited  jurisdiction,  when 
duly  approved  or  confirmed,  are  as  legal  and  valid  as  those  of 
any  other  tribunals.  No  appeal  can  be  taken  from  them,  nor 
can  they  be  set  aside,  or  reviewed  by  the  courts  of  the  United 
States,  nor  of  any  State,  but  United  States  courts  may,  on 
a  writ  or  habeas  corpus,  inquire  into  the  legality  of  detention 
of  a  person  held  by  military  authority,  at  any  time,  either 
before  or  during  trial  or  while  serving  sentence,  and  will 
order  him  discharged,  if  it  appears  to  the  satisfaction  of  the 
court  that  any  of  the  statutory  requirements  conferring 
jurisdiction  have  not  been  fulfilled.  Their  sentences  have  in 
themselves  no  legal  effect  until  they  have  received  the  ap- 
proval or  confirmation  of  the  proper  commanding  officer. 
With  such  approval  or  confirmation,  however,  their  sen- 
tences become  operative  and  are  as  effective  as  the  sentences 
of  civil  courts  having  criminal  jurisdiction,  and  are  entitled 
to  the  same  legal  consideration. 

33a.  Their  Nature. — While  courts-martial  are  not  a  part  of  the 
Federal  judicial  system,  they  exercise  within  the  Army  functions 
of  a  purely  judicial  nature,  for  the  maintenance  of  discipline  and 
good  order;  and  are,  no  less  than  other  courts,  governed  by  law. 

NOTE. — "  The  whole  proceeding  from  its  inception  is  judicial.  The 
trial,  finding,  and  sentence  are  the  solemn  acts  of  a  court  organized 

26 


COURTS-MARTIAL — JURISDICTION.  ^f    34 

and  conducted  under  the  authority  and  according  to  the  prescribed 
forms  of  law.  It  sits  to  pass  upon  the  most  sacred  questions  of 
human  rights  that  are  ever  placed  on  trial  in  a  court  of  justice;  rights 
which,  in  the  very  nature  of  things,  can  neither  be  exposed  to  danger 
nor  entitled  to  protection  from  the  uncontrolled  will  of  any  man,  but 
which  must  be  adjudged  according  to  law.  And  the  act  of  the  officer 
who  reviews  the  proceedings  of  the  court,  whether  he  be  the  com- 
mander of  the  fleet  or  the  President,  and  without  whose  approval 
the  sentence  can  not  be  executed,  is  as  much  a  part  of  this  judg- 
ment, according  to  law,  as  is  the  trial  or  the  sentence."  (11  Ops. 
Atty.  Gen.,  19,  21.) 

"  Courts-martial  are  lawful  tribunals,  with  authority  to  finally  de- 
termine any  case  over  which  they  have  jurisdiction,  and  their  pro- 
ceedings, when  confirmed  as  provided,  are  not  open  to  review  by 
the  civil  tribunals,  except  for  the  purpose  of  ascertaining  whether 
the  military  court  had  jurisdiction  of  the  person  and  subject  mat- 
ter, and  whether,  though  having  such  jurisdiction,  it  had  exceeded 
its  powers  in  the  sentence  pronounced."  (Grafton  v.  TJ.  S,,  206  IT. 
S.,  333,  347-348.) 

34.  CONDITIONS  NECESSARY  TO  SHOW  JURISDICTION. — The 
jurisdiction  of  every  court-martial,  and  hence  the  validity  of 
each  of  its  judgments,  is  conditioned  upon  these  indispensable 
requisites : 

(a)  That  it  was  convened  by  an  officer  empowered  to  ap- 
point it. 

(5)  That  the  persons  who  sat  upon  the  court  were  legally 
competent  to  do  so. 

(c)  That  the  court  thus  constituted  was  invested  by  the 
acts  of  Congress  with  power  to  try  the  person  and  the  offense 
charged. 

(d)  That  its  sentence  was  in  accordance  with  law. 

"  Persons,  then  belonging  to  the  Army  and  the  Navy  are  not  subject 
to  illegal  or  irresponsible  courts-martial,  when  the  law  for  convening 
them  and  directing  their  proceedings  of  organization  and  for  trial 
have  been  disregarded.  In  such  cases  everything  which  may  be  done 
is  void — not  voidable  but  void — and  civil  courts  have  never  failed, 
upon  a  proper  suit,  to  give  a  party  redress  who  has  been  injured  by 
a  void  process  or  void  judgment  *  *  *  When  we  speak  of  pro- 
ceedings in  a  cause,  or  for  the  organization  of  the  court  and  for  trials, 
we  do  not  mean  mere  irregularity  in  practice  on  the  trial,  or  any 
mistaken  rulings  in  respect  to  evidence  or  law,  but  a  disregard  of  the 
essentials  required  by  the  statute  under  which  the  court  has  been 
convened  to  try  and  to  punish  an  offender  for  an  imputed  violation 
of  the  law."  (Dynes  v.  Hoover,  61  U.  S.,  81;  see  also  Deming  <y. 


27 


If   "35  CHAPTER  IV. 

McClaughry,  113  Fed.  Rep.,  650;  McCIaughry  v.  Deming,  186  U.  S., 
C3;  Mullan  v.  United  States,  140  U.  S.,  240;  Ex  parte  Tucker,  212 
Fed.  Rep.,  569;  and  A.  W.  37.) 

35.  PROCEDURE  WHEN  MILITARY  AND  CIVIL  JURISDICTION 
CONCURRENT. — Courts-martial  have  exclusive  jurisdiction  tc 
try  persons  subject  to  military  law  for  all  purely  military 
crimes  and  offenses;  they  have  concurrent  jurisdiction  with 
the  proper  civil  courts  to  try  such  persons  for  civil  crimes 
and  offenses  denounced  and  punished  under  A.  W.  92,  93, 
94,  and  96.  (For  limitation  as  to  the  crimes  of  murder  and 
rape,  see  A.  W.  92.)  In  accordance  with  a  principle  of 
comity  as  between  the  civil  and  military  tribunals  in  cases 
of  concurrent  jurisdiction,  the  jurisdiction  which  first  at- 
taches in  a  particular  case  is  entitled  to  proceed  to  its  ter- 
mination. This  is,  however,  not  an  inflexible  rule  and  need 
not  govern  the  action  of  the  military  authorities  in  the  case 
of  an  accused  person  demanded  by  the  civil  authorities  to 
answer  for  an  offense  which  is  primarily  one  against  the 
sivil  community. 

When  any  person  subject  to  military  law,  except  (a)  one 
jvho  is  held  by  the  military  authorities  to  answer,  or  (b) 
who  is  awaiting  trial,  or  (c)  result  of  trial,  or  (d)  who  is 
undergoing  sentence  for  a  crime  or  offense  punishable  by  the 
Articles  of  War,  is  accused  of  a  crime  or  offense  committed 
tvithin  the  geographical  limits  of  the  States  of  the  Union 
and  the  District  of  Columbia,  and  punishable  by  the  laws 
of  the  land,  the  commanding .  officer  is  required,  except  in 
time  of  war,  upon  application  duly  made,  to  use  his  utmost 
endeavor  to  deliver  over  such  accused  person  to  the  civil 
authorities,  or  to  aid  the  officers  of  justice  in  apprehending 
and  securing  him,  in  order  that  he  may  be  brought  to  trial. 
Any  commanding  officer  who  upon  such  application  refuses 
or  willfully  neglects,  except  in  time  of  war,  to  deliver  over 
such  accused  person  to  the  civil  authorities  or  to  aid  the 
officers  of  justice  in  apprehending  and  securing  him  shall  be 
dismissed  from  the  service  or  suffer  such  other  punishment  as 
a  court-martial  may  direct. 

When,  under  the  provisions-  of  this  article,  delivery  is 
made  to  the  civil  authorities  of  an  offender  undergoing  sen- 
tence of  a  court-martial,  such  delivery,  if  followed  by  con- 

28 


COURTS-MARTIAL — JURISDICTION.  H    36 

viction,  shall  be  held  to  interrupt  the  execution  of  the  sen- 
tence of  the  court-martial,  and  the  offender  shall  be  returned 
to  military  custody,  after  having  answered  to  the  civil  au- 
thorities for  his  offense,  for  the  completion  of  the  said  court- 
martial  sentence.  (A.  W.  74.)  When  offenses  against  the 
peace  and  good  order  of  civil  communities  are  committed  by 
persons  subject  to  military  law,  the  proper  military  authori- 
ties will  be  prompt  in  the  preferring  of  charges  and  the 
arraignment  of  offenders,  having  due  regard  for  arrange- 
ments existing  for  the  purpose  of  securing  between  the  au- 
thorities of  the  two  jurisdictions,  civil  and  military,  mutual 
aid  and  cooperation  in  the  administration  of  justice.  In 
such  cases,  if,  after  charges  are  preferred,  the  officer  com- 
petent to  order  trial  by  the  proper  court-martial  deems  it 
inadvisable  to  bring  the  case  to  trial,  he  will  hold  the  offender 
and  forward  the  charges,  with  his  views  thereon,  to  The 
Adjutant  General  of  the  Army. 

36.  CAN  NOT  BE  DIVESTED  BY  ACT  OF  ACCUSED. — A  court- 
martial  having  once  duly  assumed  jurisdiction  of  a  case, 
can  not,  by  any  wrongful  act  of  the  accused,  be  ousted  of  its 
authority  or  discharged  from  its  duty  to  proceed  fully  to 
try  and  determine  according  to  law  and  its  oath.    Thus  the 
fact  that,  after  arraignment  and  during  the  trial,  the  ac- 
cused has  escaped  from  military  custody  furnishes  no  ground 
for  not  proceeding  to  a  finding,  and,  in  the  event  of  convic- 
tion, to  a  sentence  in  the  case ;  and  the  court  may  and  should 
find  and  sentence  as  in  any  other  case.    During  such  absence 
it  is  proper  for  his  counsel  to  continue  to  represent  him  in 
all  respects  as  though  present. 

37.  NOT  TERRITORIAL. — Military  jurisdiction  is  not  terri- 
torial.    It  extends  as  to  persons  legally  subject  to  it  to 
offenses  committed  by  them  in  any  place  whatsoever,  whether 
within  or  beyond  the  territorial  jurisdiction  of  the  United 
States. 

NOTE. — Herein  military  jurisdiction  differs  sharply  from  the  juris- 
diction of  civil  courts.  The  latter  are  created  for  certain  districts, 
counties  or  other  geographical  subdivisions,  to  which  their  jurisdic- 
tion is  limited.  The  have  no  jurisdiction  beyond  such  geographical 
limits  or  over  any  offense  not  committed  within  such  boundaries.  The 
jurisdiction  of  military  courts  is,  on  the  contrary,  not  so  limited. 


29 


^[   38  CHAPTER  IV. 

Hence  the  rules  of  civil  courts  relating  to  "  venue  "  have  no  appli- 
cation in  military  courts. 

38.  WTIEX  TERMINATED — RULE  STATED. — The  jurisdiction 
of  courts-martial  over  officers,  cadets,  soldiers,  and  other 
persons  in  the  military  service  of  the  United  States,  ordi- 
narily ends  when  they  become  separated  from  the  service. 
The  following  are,  however,  exceptions  to  this  general  rule : 

(a)  If  any  person,  being  guilty  of  any  of  the  offenses  of 
fraud,  embezzlement,  etc.,  against  the  United  States,  while 
in  the  military  service  of  the  United  States,  receives  his  dis- 
charge or  is  dismissed  from  the  service,  he  shall  continue  to 
be  liable  to  be  arrested  and  held  for  trial  and  sentence  by  a 
court-martial  in  the  same  manner  and  to  the  same  extent  as 
if  he  had  not  received  such  discharge  nor  been  dismissed. 
(A.  W.  94.) 

(&)  When  any  officer,  dismissed  by  order  of  the  President, 
makes,  in  writing,  an  application  for  trial,  setting  forth, 
under  oath,  that  he  has  been  wrongfully  dismissed,  the  Presi- 
dent shall,  as  soon  as  the  necessities  of  the  service  may  per- 
mit, convene  a  court-martial  to  try  such  officer  on  the  charges 
on  which  he  shall  have  been  dismissed,  and  if  a  court-martial 
is  not  so  convened  within  six  months  from  the  date  of  the 
making  of  such  application  for  trial,  or  if  such  court,  being 
convened,  does  not  award  dismissal  or  death  as  the  punish- 
ment of  such  officer,  the  order  of  dismissal  by  the  President 
shall  be  void.  (R.  S.  1230.) 

NOTE  1. — This  has  no  reference  to  an  officer  discharged  from  the 
Army  by  reason  of  being  classified  in  class  B,  under  section  24b  of 
the  National  Defense  Act  as  amended  by  the  act  of  June  4,  1920 
(41  Stat.  773).  An  officer  so  discharged  is  not  entitled  to  demand  a 
trial  by  court-martial  under  K.  S.  1230. 

NOTE  2. — In  time  of  peace  no  officer  shall  be  dismissed  except  iii 
pursuance  of  the  sentence  of  a  court-martial  or  in  mitigation  thereof. 
(A.  W.  118.)  An  officer  discharged  from  his  office  by  the  President 
under  section  9  of  the  selective-draft  act  is  not  entitled  to  demand  a 
trial  by  court-martial.  (Dig.  Ops.,  J.  A.  G.,  May,  1918,  Office  IV  E.) 

NOTE  3. — The  President  may  at  any  time  drop  from  the  rolls  of 
the  Army  any  officer  who  has  been  absent  from  duty  three  months 
without  leave,  or  who  has  been  absent  in  confinement  in  a  prison  or 
penitentiary  for  three  months  after  final  conviction  by  a  court  of  com- 
petent jurisdiction.  (A.  W.  118;  K.  S.  1229;  act  of  Jan.  19,  1911,  38 


80 


COURTS-MARTIAL — JURISDICTION.  If    39 

Stat.,  894.)  When  an  officer's  name  is  so  dropped  from  the  rolls  by 
the  President  the  officer  is  thereby  fully  separated  from  the  military 
service  and  becomes  a  civilian  (par.  XX  E,  Dig.  Ops.  J.  A.  G.,  p.  426; 
2d  Ind.,  Mar.  25,  1920,  J.  A.  G.  300.2;  2d  Ind.,  June  16,  1920,  J.  A. 
G.,  210.14);  subject,  however,  to  his  right  to  have  a  court-martial 
convened  to  try  him  on  the  charges  on  which  he  shall  have  been 
dismissed,  under  section  1230,  E.  S. 

NOTE  4. — The  Court  of  Claims  has  held  section  1230,  R.  S.,  to  be 
inoperative.  (See  note  to  par.  15,  supra.) 

(c)  All  persons  under  sentence  adjudged  by  courts-martial 
remain  subject  to  military  law  while  under  such  sentence. 
(A.  W.  2.) 

(d)  Where  a  soldier  obtains  his  discharge  by  fraud,  the 
discharge  may  be  canceled  and  the  soldier  arrested  and  re- 
turned to  military  control.    He  may  also  be  required  to  serve 
out  his  enlistment  and  may  be  tried  for  his  fraud.     (Digest, 
p.  457,  XVI,  A.  3.) 

(e)  An  honorable  discharge  releases  from  the  particular 
contract  and  term  of  enlistment  to  which  it  relates,  and  does 
not  therefore  relieve  the  soldier  from  the  consequences  of  a 
desertion  committed  during  a  prior  enlistment.     (Digest,  p. 
462,  XXII,  A.) 

NOTE. — For  an  offense  committed  prior  to  the  expiration  of  his  term 
of  enlistment,  a  soldier  may  be  held  in  the  service  and  tried  after  the 
expiration  of  his  term.  So,  also,  a  soldier  may  be  tried  for  offenses 
committed  while  making  good  time  lost  through  desertion,  through 
absence  without  leave,  through  disease  or  injury,  the  result  of  his  own 
misconduct,  etc.,  under  A.  W.  107. 

SECTION  II. 
JURISDICTION    OF    GENERAL    COURTS-MARTIAL. 

39.  PERSONS  AND  OFFENSES  —  GENERAL  COURTS- MARTIAL 
have  power  (A.  W.  12)  to  try — 

(a)  Any  person  subject  to  military  law,  for 

(b)  Any  crime  or  offense  made  punishable  by  the  Ar- 

ticles of  War. 

NOTE. — No  officer  shall  be  brought  to  trial  before  a  general  court- 
martial  appointed  by  the  Superintendent  of  the  Military  Academy. 
(A.  W.  12.) 


31 


TI    40  C?HAPTER  IV. 

In  addition  they  have  power  to  try — 

(c)  Any  person  other  than  (a)  above,  who  by  the  law  of 
war  is  subject  to  trial  by  military  tribunals,  for 

(d)  Any  crime  or  offense  in  violation  of  the  law  of  war. 
40.  LIMITS  OF  PUNISHMENT  —  EXCEPTION.  —  Punishment 

upon  conviction  is  discretionary  with  a  general  court-mar- 
tial, except — 

(a)  When  mandatory  under  the  law,  or 

(b)  When  limited  by  order  of  the  President  under  A.  W. 
45 ;  in  addition, 

(c)  The  death  penalty  can  be  imposed  only  when  specifi- 
cally authorized;  and 

(d)  Except  for — 

(a)  Desertion  in  time  of  war, 

(b)  Repeated  desertion  in  time  of  peace,  or 

(c)  Mutiny, 

no  person  shall  under  the  sentence  of  a  court-martial  be  pun- 
ished by  confinement  in  a  penitentiary  unless  an  act  or  omission 
of  which  he  is  convicted  is  recognized  as  an  offense  of  a  civil  na- 
ture and  so  punishable  by  penitentiary  confinement  for  more  than 
one  year  by  some  statute  of  the  United  States  of  general  applica- 
tion within  the  continental  United  States  (excepting  sec.  289, 
Penal  Code  of  the  United  States,  1910),  or  by  the  law  of  the  Dis- 
trict of  Columbia,  or  by  way  of  commutation  of  a  death  sentence, 
and  unless,  also,  the  period  of  confinement  authorized  and  ad- 
judged by  such  court-martial  is  more  than  one  year.  (A.  W.  42.) 

(e)  In  time  of  peace,  the  period  of  confinement  in  a  peniten- 
tiary shall  in  no  case  exceed  the  maximum  period  prescribed  by 
the  law  which,  under  the  forty-second  article  of  war,  permits 
confinement  in  a  penitentiary  (see  (d)  supra) ;  unless,  in  addi- 
tion to  the  offense  so  punishable  under  such  law,  the  accused  shall 
have  been  convicted  at  the  same  time  of  one  or  more  other  of- 
fenses.    (A.  W.  45.) 

Exception. — When  a  sentence  of  confinement  is  adjudged  by  a 
court-martial  upon  conviction  of  two  or  more  acts  or  omissions 
any  one  of  which  is  punishable  by  confinement  in  a  penitentiary, 
the  entire  sentence  of  confinement  may  be  executed  in  a  peni- 
tentiary. 


32 


COURTS-MARTIAL — JURISDICTION.  ^f   41 

NOTE  1. — The  death  penalty  is  mandatory  in  the  case  of  spies  (A. 
W.  82)  ;  dismissal  is  mandatory  for  conduct  unbecoming  an  officer  and 
gentleman  (A.  W.  95)  ;  either  death  or  imprisonment  for  life  is  manda- 
tory for  murder  and  rape  (A.  W.  92)  ;  punishment  is  mandatory  in 
part  and  discretionary  in  part  for  false  muster  (A.  W.  56)  ;  false  re- 
turns (A.  W.  57),  officer  drunk  on  duty  in  time  of  war  (A.  W.  85), 
and  personal  interest  in  the  sale  of  provisions  (A.  W.  87).  For 
limits  of  punishment  fixed  by  the  President  under  A.  W.  45,  see  Chap- 
ter XIII,  infra,  Punishments. 

NOTE  2. — For  discussion  of  places  of  confinement  and  of  peniten- 
tiary confinement,  and  of  the  War  Department  policy  regarding 
punishments,  see  Chapter  XIII,  post,  "  Punishments,"  Sections  H 
and  in. 

NOTE  3. — For  a  conviction  where  the  death  penalty  is  mandatory, 
or  for  a  sentence  of  death,  a  unanimous  vote  of  all  the  members  of 
the  court  present  is  required;  and  for  a  sentence  to  life  imprison- 
ment, or  to  confinement  for  more  than  10  years,  a  three-fourths  vote. 
All  other  convictions  and  sentences  require  a  two-thirds  vote.  (A. 
W.  43.)  See,  infra,  par.  308. 

NOTE  4. — An  officer  may  not  be  sentenced  to  a  reduction  in  rank; 
since  that  would  involve  the  power  of  appointment  to  the  lower 
grade,  which  is  beyond  the  power  of  the  court. 

SECTION  III. 
JURISDICTION   OF   SPECIAL   COURTS-MARTIAL. 

41.  PERSONS  AND  OFFENSES. — Special  courts-martial  shall 
have  power  (A.  W.  13)  to  try — 

(1)  Any  person  subject  to  military  law,  except — 

Any  person  subject  to  military  law  belonging  to  a 
class  or  classes  excepted  by  the  President,  by  regula- 
tions, for 

(2)  Any  crime  or  offense  (not  capital)  made  punishable 
by  the  Articles  of  War. 

NOTE. — For  classes  of  persons  exempted  by  the  President,  by  reg- 
ulations, from  the  jurisdiction  of  special  courts-martial,  see  Appen- 
dix 21. 

The  following  are  capital  crimes  and  offenses  under  the 
Articles  of  War,  viz : 

(1)  At  all  times. —  (a)  Assaulting  or  disobeying  a 
superior  officer  (A.  W.  64)  ;  (b)  mutiny  or  se- 
dition (A.  W.  66)  ;  (c)  failure  to  suppress 
mutiny  or  sedition  (A.  W.  67)  ;  (d)  murder, 
rape  (A.  W.  92). 

33 
21358°— 20 3 


H    4 la  CHAPTER  IV. 

(2)  War  offenses.—  (a)  Desertion  (A.  W.  58) ;  (6) 
advising  or  aiding  another  to  desert  (A.  W. 
59) ;  (c)  misbehavior  before  the  enemy  (A.  W. 
75)  ;  (d)  compelling  or  attempting  to  compel  a 
commander  to  surrender  (A.  W.  76) ;  (e)  im- 
proper use  of  countersign  (A.  W.  77) ;  (/)  forc- 
ing a  safeguard  (A.  W.  78) ;  (g)  relieving,  cor- 
responding with,  or  aiding  the  enemy,  or  at- 
tempting to  relieve  the  enemy  (A.  W.  81)  ;  (h) 
spies  (A.  W.  82) ;  (i)  misbehavior  of  sentinel 
(A.  W.  86). 

41  a.  The  second  proviso  to  the  twelfth  article  of  war,  which 
was  added  by  the  revision  of  1920,  provides — 

"  That  the  officer  competent  to  appoint  a  general  court- 
martial  for  the  trial  of  any  particular  case  may,  when  in 
his  judgment  the  interest  of  the  service  shall  so  require, 
cause  any  case  to  be  tried  by  a  special  court-martial  not- 
withstanding the  limitations  upon  the  jurisdiction  of  the 
special  court-martial  as  to  offenses  set  out  in  article  13; 
but  the  limitations  upon  jurisdiction  as  to  persons  and 
upon  punishing  power  set  out  in  said  article  shall  be  ob- 
served." 

The  purpose  of  the  amendment  is  to  enlarge  the  jurisdiction 
of  the  special  court-martial  to  embrace  all  offenses  committed 
by  any  person  subject  to  military  law,  except  persons  belonging 
to  any  class  or  classes  exempted  from  the  jurisdiction  of  the  spe- 
cial court-martial  by  the  President  by  regulations.  It  does  not 
enlarge  the  punishing  powers  of  the  special  court-martial. 
"  The  fundamental  idea  is  that  many  of  our  articles  denounce 
offenses  as  capital,  which,  when  committed  under  certain  cir- 
cumstances, are  really  of  no  vital  import  to  the  service.  The 
amendment"  confides  "to  the  officer  exercising  general  court- 
martial  jurisdiction  a  discretion  whereby  he  may  either  send  cases 
before  a  general  court  or  have  them  disposed  of  by  one  of  the 
inferior  courts.  The  effect  of  this  modification  ought  to  be  a  very 
considerable  reduction  in  the  number  of  cases  tried  by  general 
courts-martial."  (Report,  Kernan  Board,  p.  21.) 


COURTS-MARTIAL — JURISDICTION.  If    42 

42.  LIMITS  OF  PUNISHBIENT. — A  special  court-martial  shall 
not  have  power  to  adjudge — 

(a)  Dishonorable  discharge  of  an  enlisted  man.     (A 

W.  108); 
(5)   Dismissal  of  an  officer  (A.  W.  118) ; 

(c)  Confinement  in  excess  of  six  months  (A.  W.  13) ; 

nor 

( d)  Forfeiture  of  more  than  two-thirds  pay  per  month 

for  a  period  of  nat  exceeding  six  months.     (A.  W. 

13.) 

NOTE. — Reduction  to  the  ranks  in  the  case  of  noncommissioned 
officers  and  reduction  in  classification  of  privates  may  be  effected  by 
sentence  of  special  court-martial  except  as  the  Executive  order  con- 
cerning maximum  punishments,  or  this  Manual,  or  other  regula- 
tions or  War  Department  orders  may  from  time  to  time  exempt  such 
persons  from  the  jurisdiction  of  special  courts  or  may  prohibit  such 
reduction.  (But  see  Appendix  21.) 

SECTION  IV. 
JURISDICTION   OF   SUMMARY   COURTS-MARTIAL. 

43.  PERSONS    AND    OFFENSES. — Summary    courts-martial 
shall  have  power  (A.  W.  14)  to  try — 

(1)  Any  person  subject  to  military  law,  except — 
(a)  An  officer; 

A  member  of  the  Army  Nurse  Corps; 
A  warrant  officer; 
An  Army  field  clerk; 
fe)  A  field  clerk  Quartermaster  Corps^ 

!)  A  cadet; 
(g)  A  soldier  holding  the  privileges  of  a  certificate  of 

eligibility  to  promotion ; 

(h)  A  noncommissioned  officer  who  objects  thereto 
(without  the  authority  of  the  officer  competent 
to  bring  him  to  trial  before  a  general  court- 
martial). 

NOTE. — If  the  accused  be  a  noncommissioned  offi- 
cer he  will  he  asked,  at  the  outset  of  the  trial, 
whether  he  objects  to  trial  by  summary  court-martial, 
and  the  fact  of  his  being  so  asked,  and  his  answer  to 
the  question,  will  be  written  down  in  the  record  and 
in  the  report  of  trial. 

35 


^f    44  CHAPTER  IV. 

(i)  Any  person  belonging  to  a  class  or  classes  ex- 
cepted  from  the  jurisdiction  of  summary  courts- 
martial  by  the  President,  by  regulations;  for 
(2)  Any  crime  or  offense  (not  capital)  made  punishable 
by  the  Articles  of  War. 

NOTE  1. — For  list  of  capital  crimes  under  the  Articles  of  War  see 
Section  III,  paragraph  41,  supra. 

NOTE  2. — For  classes  of  persons  exempted  by  the  President,  by 
regulations,  from  the  jurisdiction  of  summary  courts-martial,  see 
Appendix  21. 

44.  LIMITS  OF  PUNISHMENT. — A  summary  court-martial 
shall  not  have  power  to  adjudge — 

(a)  Dishonorable  discharge  (A.  W.  108) ; 

(b)  Confinement  in  excess  of  one  month ; 

(c)  Restriction  to  limits  for  more  than  three  months; 

(d)  Forfeiture  of  more  than  two-thirds  of  one  month's 

pay;  nor 

(e)  Detention  of  more  than  two-thirds  of  one  month's 

pay.     (A.  W.  14.) 

NOTE. — Reduction  to  the  ranks  in  the  case  of  noncommissioned 
officers  and  reduction  in  classification  of  privates  may  be  effected  by 
sentence  of  summary  court-martial,  except  as  the  Executive  order 
concerning  maximum  punishments,  or  this  Manual,  or  other  regula- 
tions or  War  Department  orders  may  from  time  to  time  exempt 
such  persons  from  the  jurisdiction  of  summary  courts  or  may  prohibit 
such  reduction.  (But  see  Appendix  21.) 

SECTION  V. 
JURISDICTION   OF   OTHER  MILITARY   TRIBUNALS. 

45.  WHEN  CONCURRENT  WITH  COURTS-MARTIAL. — The  pro- 
visions of  the  articles  of  war  conferring  jurisdiction  upon 
courts-martial   shall  not   be   construed   as   depriving   mili- 
tary commissions,  provost  courts,  or  other  military  tribunals 
of  concurrent  jurisdiction  in  respect  of   offenders   or   of- 
fenses that  by  statute  or  by  the  law  of  war  may  be  triable 
by  such  military  commissions,  provost  courts,  or  other  mili- 
tary tribunals.    (A.  W.  15.) 


36 


CHAPTER  V. 

COURTS-MARTIAL—PROCEDURE   PRIOR   TO 
TRIAL. 


Section  I:  Arrest  and  confinement:  Page. 

46.  Arrest  or  confinement  of  accused  persons 37 

47.  Who  may  order  arrests 38 

48.  Arrest,  how  executed 39 

49.  Status  of  officer  In  arrest 39 

50.  Arrest  of  officer  without  preferring  charges 39 

52.  Arrest  and  confinement  of  soldiers 39 

53.  Status  of  warrant  officer  or  noncommissioned  officer  in 

arrest 40 

55.  Refusal  to  receive  and  keep  prisoners 40 

56.  Placing  prisoners  in  irons 40 

57.  Releasing  prisoners  without  proper  authority 41 

Section  II :  Arrest  of  deserters  by  civil  authorities : 

58.  Authority  for  apprehension 41 

59.  Authority  of  citizens  other  than  peace  officers  to  arrest 

deserters 41 

60.  Minority  of  deserter 42 


SECTION  I. 
ARREST  AND  CONFINEMENT. 

46.  ARREST  OR  CONFINEMENT  or  ACCUSED  PERSONS. — (a)  A 
person  charged  with  an  offense  will  not  be  placed  either  in  arrest 
or  confinement  (nor  continued  therein  if  arrested  or  confined  at 
any  time)  before  trial,  unless  the  commanding  officer,  in  cases 
where  (1)  a  crime  or  a  serious  offense  under  the  Articles  of  War 
is  charged,  or  (2)  in  exceptional  circumstances,  although  the 
charge  is  only  of  a  minor  offense,  considers  arrest  or  confinement 
necessary  for  the  purpose  of  holding  the  accused  at  the  post  or 
of  preventing  his  escape. 

NOTE. — A.  W.  69  as  amended  Ly  the  code  of  1920  does  away  with 
prior  provisions  contemplating  different  treatment  of  officers  and 
enlisted  men  charged  with  offenses,  and  makes  identical  provisions 
relating  thereto  for  all  persons  subject  to  military  law. 

87 


H"   47  CHAPTER  V. 

(5)  Any  person  placed  in  arrest  under  the  provisions  of 
this  article   (A.  W.  69)   shall  thereby  be  restricted  to  his 
barracks,  quarters,  or  tent,  unless  such  limits  shall  be  en- 
larged by  proper  authority.     Any  officer  or  cadet  who  breaks 
his  arrest  or  who  escapes  from   confinement,  whether  be- 
fore or  after  trial  or  sentence  and  before  he  is  set  at  liberty 
by  proper  authority,  shall  be  dismissed  from  the  service  or 
suffer  such  other  punishment  as  a  court-martial  may  direct ; 
and  any  other  person  subject  to  military  law  who  escapes 
from  confinement  or  who  breaks  his  arrest,  whether  before 
or  after  trial  or  sentence  and  before  he  is  set  at  liberty  by 
proper  authority,  shall  be  punished  as  a  court-martial  may 
direct.    (A.  W.  69.) 

NOTE. — A  failure  to  place  a  person  subject  to  military  law  in  arrest 
or  confinement  or  the  disregard  of  any  custom  or  formality  connected 
therewith  does  not  affect  the  jurisdiction  of  a  court. 

47.  WHO  MAT  ORDER  ARRESTS. —  (a)  Only  commanding 
officers  have  power  to  place  officers  in  arrest,  except  as  pro- 
vided in  A.  W.  68. 

NOTE. — The  "  commanding  officer "  thus  authorized  is  the  com- 
mander of  the  regiment,  separate  company,  detachment,  post,  depart- 
ment, etc.,  In  which  the  officer  is  serving.  Digest,  p.  481,  I  D.  1. 

(6)  A  trial  judge   advocate  of  a  court-martial  has   no 
authority  to  place  in  arrest  an  officer  or  soldier  about  to  be 
tried  by  the  court,  or  to  compel  the  attendance  of  the  ac- 
cused before  the  court  by  requiring  a  noncommissioned  offi- 
cer to  bring  him,  or  otherwise.    These  are  duties  which  de- 
volve upon  the  convening  authority  or  upon  the  post  com- 
mander or  other  proper  officer  in  whose  custody  or  com- 
mand the  accused  is  at  the  time.     (Digest,  p.  498,  IV,  B,  5.) 

(c)  A  court-martial  has  no  control  over  the  nature  of  the 
arrest  or  other  status  of  restraint  of  a  prisoner  except  as 
regards  his  personal  freedom  in  its  presence.  It  can  not 
place  an  accused  person  in  arrest  or  confinement  nor  can 
the  court,  even  with  a  view  to  facilitate  his  defense,  inter- 
fere to  cause  a  close  arrest  to  be  enlarged.  The  officer  in 
command  is  alone  responsible  for  the  prisoners  in  his  charge. 
(Davis,  p.  62.) 

But  the  court  may,  and  in  a  proper  case  should,  either  on  its 
own  motion,  or  on  that  of  the  trial  judge  advocate  or  of  the  ac- 

38 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL.      If   48 

cused  or  his  counsel,  make  such  recommendations  on  this  subject, 
to  the  appointing  authority,  as  it  may  deem  fit. 

48.  ARREST,  How  EXECUTED. — An  officer  is  placed  in  ar- 
rest by  his  commanding  officer  in  person  or  through  another 
officer,  by  a  verbal  or  written  order  or  communication,  ad- 
vising him  that  he  is  placed  in  arrest,  or  will  consider  him- 
self in  arrest,  or  words  to  that  effect. 

49.  STATUS  OF  OFFICER  IN  ARREST. — An  officer  in  arrest 
can  not  exercise  command  of  any  kind.    He  will  not  wear  a 
sword  nor  visit  officially  his  commanding  or  other  superior 
officer,  unless  directed  to  do  so.     His  applications  and  re- 
quests of  every  nature  will  be  made  in  writing. 

50.  ARREST  OF  OFFICER  WITHOUT  PREFERRING  CHARGES. — 
Officers  will  not  be  placed  in  arrest  for  light  offenses.    For 
these  the  censure  of  the  commanding  officer  will  generally 
answer  the  purpose  of  discipline.    Whenever  a  commanding 
officer  places  an  officer  in  arrest  without  preferring  charges, 
he  will  make  a  written  report  of  his  action  to  the  brigade 
or  Coast  Artillery  district  commander,  stating  the  cause. 
The  brigade  or  Coast  Artillery  district  commander,  if  he 
thinks  the  occasion  requires,  will  call  on  the  officer  arrested 
for  any  explanation  he  may  desire  to  make,  and  take  such 
other  action  within  his  authority  as  he  may  think  necessary, 
forwarding  the  papers,  with  his  recommendation,  to  the  area 
or  department  commander,  who  will,  in  case  a  trial  is  not 
deemed   advisable,   forward   the   papers   to   The   Adjutant 
General  of  the  Army  for  file  with  the  officer's  record,  or  for 
further  action.    In  the  case  of  officers  belonging  to  organi- 
zations not  attached  or  belonging  to  a  brigade  or  Coast  Ar- 
tillery district,  the  report  will  be  sent  directly  to  the  officer 
exercising  general  court-martial  jurisdiction. 

[Paragraph  51  is  omitted  in  this  revision,  in  view  of  paragraph  46> 
supra.] 

52.  ARREST  AND  CONFINEMENT  OF  SOLDIERS. — Except  as 
provided  in  A.  W.  68,  or  when  immediate  restraint  is  neces- 
sary, no  soldier  will  be  confined  without  the  order  of  an 
officer,  who  shall  previously  inquire  into  his  offense;  it  is 
proper,  however,  for  a  company  commander  to  delegate  to 
noncommissioned  officers  of  his  company  the  power  to  place 


39 


^f    35  CHAPTER  V. 

enlisted  men  in  arrest  as  a  means  of  restraint  at  the  instant 
when  restraint  is  necessary,  but  such  action  must  be  reported 
to  the  company  commander  at  once.  (Digest,  p.  481, 1,  E.  1.) 

NOTE. — The  chief  object  of  Congress  in  changing,  by  the  code  of 
1920,  the  provisions  of  A.  W.  69  relating  to  arrest  and  confinement 
was  to  lessen  resort  to  confinement,  particularly  of  enlisted  men,  in 
cases  where  restraint  is  not  a  necessity,  either  to  prevent  the  escape 
of  the  accused  or  to  restrain  him  from  further  violence  or  for  other 
like  reasons.  No  soldier  or  officer  will  be  ordered  into,  or  retained  in, 
confinement  prior  to  trial  by  court-martial  except  where  confinement 
is  necessary  for  one  of  the  reasons  indicated. 

53.  STATUS  OF  Warrant  Officer  OR  NONCOMMISSIONED  OFFICER 
IN  ARREST. — Warrant  officers  and  noncommissioned  officers 
will  not  be  confined  in  company  with  privates  if  if  can  be 
avoided.  When  placed  in  arrest,  they  will  not  be  required  to 
perform  any  duty  in  which  they  may  be  called  upon  to  ex- 
ercise authority  or  control  over  others,  and  when  placed  in 
confinement,  they  will  not  be  sent  out  to  work. 

[Paragraph  54  omitted  in  this  revision.'] 

55.  REFUSAL  TO  RECEIVE  AND  KEEP  PRISONERS. — No  provost 
marshal  or  commander  of  a  guard  shall  refuse  to  receive 
or  keep  any  prisoner  committed  to  his  charge  by  an  officer 
belonging  to  the  forces  of  the  United  States,  provided  the 
officer  committing  shall,  at  the  time,  deliver  an  account  in 
writing,  signed  by  himself,  of  the  crime  or  offense  charged 
against  the  prisoner.    Any  officer  or  soldier  so  refusing  shall 
be  punished  as  a  court-martial  may  direct.     (A.  W.  71.) 

NOTE. — A.  W.  72  requires  every  commander  of  a  guard  to  submit  a 
report  in  writing  to  his  commanding  officer  within  24  hours  after  the 
confinement  of  a  prisoner  (or  as  soon  as  he  is  relieved  from  his 
guard)  showing  (a)  the  name  of  such  prisoner,  (b)  the  offense  charged 
against  him,  and  (c)  the  name  of  the  officer  committing  him.  Such 
report  is  ordinarily  contained  in  the  "  Guard  report "  and  presented 
to  the  commanding  officer  by  the  old  officer  of  the  day  at  guard  mount- 
ing. For  duty  of  commanding  officers  to  surrender  prisoners  to  civil 
authorities,  see  paragraph  35,  supra. 

56.  PLACING  PRISONERS  IN  IRONS. — Prisoners  will  not  be 
placed  in  irons  except  in  the  extraordinary  case  of  a  prisoner 
w4io,    in  the    judgment    of   the    commanding   officer,    is   a 
desperate  or  dangerous  character,  in  which  case  report  of 


40 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL.      ^[57 

action  and  the  circumstances  will  be  immediately  made  to 
the  area  or  department  or  tactical  division  commander. 
When  a  prisoner  is  removed  from  irons  a  report  of  that 
action  will  be  made  to  the  area  or  department  or  tactical  di- 
vision commander.  A  prisoner  may  be  shackled  or  hand- 
cuffed while  being  transported  from  one  post  to  another,  or 
from  a  post  to  a  penitentiary,  when,  in  the  judgment  of  the 
officer  in  charge,  the  escape  of  the  prisoner  can  not  other- 
wise be  prevented. 

57.  RELEASING  PRISONER  WITHOUT  PROPER  AUTHORITY. — 
Any  person  subject  to  military  law,  who,  without  proper 
authority,    releases    any   prisoner    duly   committed    to   his 
charge,   or  who,   through   neglect   or   design,   suffers   any 
prisoner  so  committed  to  escape,  shall  be  punished  as  a 
court-martial  may  direct.     (A.  W.  73.) 

SECTION  II. 
ARREST   OF    DESERTERS    BY    CIVIL    AUTHORITIES. 

58.  AUTHORITY  FOR  APPREHENSION. — It  shall  be  lawful  for 
any  civil  officer  having  authority  under  the  laws  of  the 
United  States,  or  of  any  State,  Territory,  District,  or  pos- 
session of  the  United  States,  to  arrest  offenders,  summarily 
to  arrest  a  deserter  from  the  military  service  of  the  United 
States  and  deliver  him  into  the  custody  of  the  military  au- 
thorities of  the  United  States.    (A.  W.  106.) 

59.  AUTHORITY  OF  CITIZENS  OTHER  THAN  PEACE  OFFICERS 
TO  ARREST  DESERTERS.  —  The  statute  conferring  authority 
upon  civil  officers  to  apprehend  and  deliver  deserters  (A.  W. 
106)  should  not  be  construed  as  taking  away  the  authority 
for  their  apprehension  by  a  citizen  under  an  order  or  di- 
rection of  a  military  officer,  but  the  legislation  should  be 
treated  as  providing  an  additional  means  of  securing  the  ar- 
rest of  deserters  by  conferring  authority  upon  civil  officers 
to   apprehend  them  without  military  orders — leaving  the 
former  method  still  legal.    The  offer  of  reward  for  the  ap- 
prehension and  delivery  of  a  deserter,  coupled  with  the  act 
of  Congress  which  provides  for  the  payment  of  such  a  re- 


41 


^[60  CHAPTER  V. 

ward,  is  considered  sufficient  authority  for  the  arrest  of  the 
deserter  by  a  citizen.  (C-17327-A.  J.  A.  G.,  July  20,  1909.) 
60.  MINORITY  OF  DESERTER. — The  right  of  the  United 
States  to  arrest  and  bring  to  trial  a  deserter  is  paramount 
to  any  right  of  control  over  him  by  a  parent  on  the  ground 
of  his  minority.  (See  Digest,  p.  401,  III,  G;  In  re  Cosenow, 
37  Fed.  Kep.,  668 ;  In  re  Kaufman,  41  Fed.  Rep.,  876 ;  and 
compare  In  re  Grimley,  137  U.  S.,  147,  and  In  re  Morrissey, 
137  U.  S.,  157.) 


CHAPTER  VI. 
COURTS-MARTIAL—PROCEDURE  PRIOR  TO  TRIAL. 

[Continued.] 


Section  I :  Preparation  of  charges :  Page. 

61.  Definitions    44 

62.  Who  may  initiate  charges 44 

G3.  Who  may  prefer  charges 45 

64.  Signing  and  swearing  to  charges 45 

65.  Accumulation  of  charges 46 

66.  Duplication  of  charges 46 

67.  Consolidation   of  charges 47 

68.  Refusal  to  submit  to  medical  treatment 47 

69.  Joint   charges 47 

70.  Charges  not  to  be  preferred  upon  uncorroborated  con- 

fession      48 

71.  Charges  for  private  indebtedness 48 

72.  Numbering  charges  and  specifications 49 

73.  Additional   charges 49 

74.  Rules  to  be  observed  in  pleading 50 

(a)  Statement  of  charge 50 

(b)  Statement  of  specification 50 

(c)  Alternative   pleading 51 

((?)  Evidence  not  to  be  pleaded 51 

(e)  Specific  articles,  when  used 52 

(f)  Forms  for  charges 52 

(g)  Time  and  place 52 

(7i)  Christian    name 53 

(i)  Charging  under  alias 53 

(j)  General   prisoners 53 

(k)  Change  of  grade 54 

(1)  Written  papers  and  oral  statements 54 

(m)   Scandalous  and  disgraceful  offenses 54 

(n)  Desertion  followed  by  fraudulent  enlistment 54 

(o)  Larceny  and  sale  of  public  property 55 

(p)   Wording  of  statute  to  be  followed 55 

Section  II :  Action  upon  charges : 

75.  Submission   of   charges 55 

76.  Receipt  of  charges — action 57 

76a.  Investigation  of  charges 58 

76b.  Further  investigation  of  general  court-martial  charges.  66 

76c.  Appointment  of  medical  board  by  convening  authority-  68 

77a.  Prompt  action  required 72 

77b.  Service  of  charges  and  other  papers  on  accused 72 

78.  Determination  of  proper  trial  court . 72 

79.  Disposition  of  copies  of  charges 73 

80.  Service  of  charges  upon  accused 74 


^[    61  CHAPTER  VI. 

r 

SECTION  I. 
PREPARATION  OF  CHARGES. 

61.  DEFINITIONS. — A  charge  corresponds  to  a  civil  indict- 
ment.    It  consists  of  two  parts — the  technical  "  charge," 
which  should  designate  the  alleged  crime  or  offense  as  a  vio- 
lation of  a  particular  article  of  war  or  other  statute,  and  the 
"specification,"  which  sets  forth  the  facts  constituting  the 
same.    The  requisite  of  a  charge  is  that  it  shall  be  laid  under 
the  proper  article  of  war  or  other  statute ;  of  a  specification, 
that  it  shall  set  forth  in  simple  and  concise  language  facts 
sufficient  to  constitute  the  particular  offense  and  in  such  man- 
ner as  to  enable  a  person  of  common  understanding  to  know 
what  is  intended.    The  general  term  "  charges,"  in  the  sense 
that  the  word  "  charge  "  is  used  in  the  first  sentence  of  this 
paragraph,  includes  any  number  of  technical  charges  and 
their  specifications. 

NOTE  1. — It  is  to  be  carefully  borne  in  mind  that  every  specifica- 
tion must  state  facts  constituting  some  particular  offense  recog- 
nized and  punishable  either  under  the  articles  of  war  or  some  other 
Federal  statute,  civil  or  military,  or  statute  for  the  District  of  Co- 
lumbia, or  at  the  common  law  as  recognized  in  the  District  of  Co- 
lumbia, or  by  the  unwritten  law  military,  the  "  custom  of  war." 
Otherwise  the  specification -is  insufficient  to  support  a  sentence. 

NOTE  2. — For  forms  for  charges  see  Appendix  6. 

62.  WHO    MAY    INITIATE    CHARGES.  —  Military    charges, 
though  commonly  originating  with  military  persons,  may  be 
initiated  by  civilians.     Indeed,  it  is  but  performing  a  public 
duty  for  a  civilian  who  becomes  cognizant  of  a  serious  offense 
committed  by  any  officer  or  soldier,  or  other  person  subject 
to  military  law,  to  bring  it  to  the  attention  of  the  proper 
commander.     But  the  law  requires   (A.  W.  70)  that  charges 
and  specifications  must  be  signed  and  sworn  to  by  a  person 
subject  to  military  law.     Charges  proceeding  from  a  person 
outside  the  Army  and  based  upon  testimony  not  in  the  pos- 
session or  knowledge  of  the  military  authorities,  should,  in 
general,  be  required  to  be  sustained  by  affidavits  or  other 
reliable  evidence,  as  a  condition  of  their  being  adopted  (Dig., 
p.  482,  II,  B) ;  particularly  since,  under  the  code  of  1920,  the 


44 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL,.      *[[    63 

formal  charges  and  specifications  must  be  substantiated  by  the 
oath  of  the  person  subject  to  military  law  who  adopts  and  form- 
ally prefers  them. 

NOTE. — Prior  to  the  code  of  1920  charges  and  specifications  were 
not  required  to  be  sworn  to,  but,  by  custom  of  the  service,  were  for- 
mally preferred  by — that  is,  authenticated  by  the  signature  of — a 
commissioned  officer.  The  code  of  1920  (A.  W.  70)  introduced  the 
requirement  that  all  charges  and  specifications  be  preferred  under 
oath,  and  provided  that  they  may  be  preferred  by  any  person  subject 
to  military  law,  thus  doing  away  with  the  prior  custom  of  the  serv- 
ice requiring  them  to  be  signed  by  a  commissioned  officer. 

63.  WHO  MAY  PREFER  CHARGES. — Any  officer  or  soldier  or 
any  other  person  subject  to  military  law  may  prefer  charges. 
An  officer  is  not  disqualified  from  preferring  charges  by  the 
fact  that  he  is  himself  under  charges  or  in  arrest  (Dig.,  p. 
483,  II,  C),  or  in  confinement;  nor  is  a  soldier  or  other  person 
subject  to  military  law  disqualified  from  preferring  charges  by 
reason  of  being  himself  under  charges  or  in  arrest  or  in  con- 
finement. 

64.  SIGNING  and  Swearing  to  CHARGES. — The  person  pre- 
ferring charges  will  sign  his  name  following  the  last  speci- 
fication, adding  his  rank  and  organization  in  the  Army,  or 
other  words  indicating  his  rank  and  status  as  a  person  subject 
to  military  law,  and  will  append  thereto  his  affidavit  in  accord- 
ance with  the  requirements  of  A.  W.  70  and  of  paragraph  75, 
infra. 

NOTE. — For  form  for  affidavit  see  Appendix  5. 

The  signing  of  charges,  like  orders,  with  the  name  of  an 
officer,  adding  "by  order  of"  his  commander,  is  not  permis- 
sible since  under  the  requirements  of  the  code  of  1920  (A.  W. 
70)  no  officer  or  other  person  can  prefer  charges  unless  he  is 
able  to  make  the  required  oath  on  his  own  responsibility  that  he 
has  personal  knowledge  of,  or  has  investigated  the  matters  set 
forth  therein,  and  that  the  same  are  true  in  fact,  to  the  best  of 
his  knowledge  and  belief.  The  signature  of  the  person  pre- 
ferring charges  forms  no  part  of  the  charges  themselves,  nor 
does  the  affidavit  thereto  appended,  but  such  signature  and  affi- 
davit will  nevertheless  be  copied  into  the  record  of  trial  by 
a  general  or  special  court-martial  in  order  that  it  may 


45 


<[[    65  CHAPTER  VI. 

affirmatively  appear  whether  the  person  preferring  the 
charges  (who  is  prinia  facie  the  accuser)  was  an  officer  who 
sat  as  a  member  of  the  court  (see  A.  W.  8,  9),  and  also  that  it 
may  affirmatively  appear  in  the  record  whether  the  charges 
were  preferred,  signed,  and  sworn  to  in  accordance  with  the  re- 
quirements of  the  law. 

65.  ACCUMULATION  or  CHARGES. — It  may  sometimes  be  ex- 
pedient, where  the  offenses  are  slight  in  themselves  and  it  is 
deemed  desirable  to  exhibit  a  continued  course  of  conduct, 
to  wait  before  preferring  charges  till  a  series  of  similar 
acts  have  been  committed,  provided  the  period  be  not  un- 
reasonably prolonged;  but,  in  general,  charges  should  be 
preferred  and  brought  to  trial  immediately  or  presently 
upon  the  commission  of  the  offenses.     Anything  like  an 
accumulation  or  saving  up  of  charges,  through  a  hostile 
animus  on  the  part  of  the  accuser,  is  discountenanced  by 
the  sentiment  of  the  service.     (Digest,  p.  490,  II,  F,  2.) 

66.  DUPLICATION  or  CHARGES. — The  duplication  of  charges 
for  the  same  act  or  omission  will  be  avoided  except  when 
by  reason  of  lack  of  definite  information  as  to  available 
evidence  it  may  be  necessary  to  charge  the  same  act  or  omis- 
sion as  constituting  two  or  more  distinct  offenses.     When 
the  same  act  or  omission  in  its  different  aspects  is  charged 
as  constituting  two  or  more  offenses,  the  court,  even  though 
it  arrives  at  a  finding  of  guilty  in  respect  of  two  or  more 
specifications,   should   impose   punishment   only   with   ref- 
erence to  the  act  or  omission  in  its  most  important  aspect, 
and  if  this  rule  be  not  observed  by  the  court  the  reviewing 
authority  should  take  the  necessary  action.    Thus  a  soldier 
should  not  be  punished  for  disorderly  conduct  and  for  as- 
sault when  the  disorderly  conduct  consisted  in  making  the 
assault.     And  so  a  person  subject  to  military  law  should 
not  be  charged  under  A.  W.  61  for  failure  to  report  for  a 
routine  duty  at  a  time  included  in  a  period  for  which  he  is 
charged  with  absence  without  leave  under  the  same  article; 
otherwise,  when  the  duty  is  not  a  routine  duty.     Routine 
duties  are  those  that  are  regularly  scheduled,  such  as  reveille, 
retreat,  stables,  fatigue,  schools,  drills,  and  parades,  but  do 
not  include  practice  marches  or  other  previously  specially 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL.      ^    67 

appointed  and  important  exercises  of  which  the  accused  is 
chargeable  with  notice. 

67.  CONSOLIDATION     OF     CHARGES. — Ordinarily     all     the 
charges  against  the  accused  should  be  consolidated  into  one 
set  of  charges,  and  one  trial  had  upon  the  consolidated  set 
instead  of  having  two  or  more  trials,  one  upon  each  set.    To 
avoid  taking  up   unnecessarily  the  time  of  a  court  with 
minor   offenses,   where   charges   are   preferred   for   serious 
offenses,  there  should  not  be  joined  with  them  charges  for 
minor  derelictions  unless  the  latter  serve  to  explain  the  cir- 
cumstances surrounding  the  serious  charges.     For  instance, 
charges  for  desertion  should  not  ordinarily  be  joined  with 
charges  for  losing  through  neglect,  Government  property 
of  small  value;  nor  should  charges  for  willful  disobedience 
of  the  orders  of  a  commissioned  officer  ordinarily  be  joined 
with  charges  for  an  absence  from  a  routine  duty. 

68.  REFUSAL  TO  SUBMIT  TO  MEDICAL  TREATMENT. — An  offi- 
cer or  soldier  may  be  charged  for  refusing  to  submit  to  a  surgical 
or  dental  operation  or  medical  or  dental  treatment  at  the  hands 
of  the  military  authorities  if  it  is  designed  to  restore  or  increase 
his  fitness  for  service  and  is  without  risk  of  life. 

A  soldier  who  refuses  to  submit  to  a  surgical  operation  that 
the  attending  surgeon  certifies  is  without  risk  to  his  life  and 
is  necessary  for  the  removal  of  a  disability  that  prevents  the 
full  performance  of  any  or  all  military  duties  that  properly  can 
be  required  of  him  will,  for  such  refusal,  be  brought  to  trial  by 
general  court-martial;  but  if  in  any  such  case  the  attending 
surgeon  is  in  doubt  as  to  whether  the  proposed  operation  involves 
risk  to  life  the  soldier  will  not  be  brought  to  trial,  but  will  be 
discharged  on  surgeon's  certificate  of  disability.  (Par.  53, 
C.  of  0.,  1881-1915.) 

69.  JOINT  CHARGES. — Where  two  or  more  persons  jointly 
and  in  pursuance  of  a  common  intent  commit  a  crime  or 
offense  which  can  be  committed  by  a  combination  of  persons 
acting  in  concert  they  may  be  separately  charged  and  tried 
for  such  crime  or  offense  or  may  be  jointly  charged  and 
jointly  tried.     The  actual  presence  of  all  of  the  accused 
persons  at  the  actual  commission  of  the  offense  is  not  neces- 
sary, for  all  who  take  part  in  the  enterprise  are  equally 
guilty,  though  they  may  be  absent  from  the  place  of  actual 

47 


Tf    70  CHAPTER  VI. 

commission  of  the  offense  with  which  they  are  charged.  The 
fact  that  justice  may  require  that  different  degrees  of  pun- 
ishment be  awarded  to  the  different  parties  constitutes  no 
objection  to  such  a  joint  prosecution.  The  mere  fact  of  their 
committing  the  same  offense  together  and  at  the  same  time, 
although  material  as  going  to  show  concert,  does  not  neces- 
sarily establish  it.  Thus  the  fact  that  several  soldiers  have 
absented  themselves  together  without  leave  will  not,  in  the 
absence  of  evidence  indicating  a  concert  of  action,  justify 
their  being  arraigned  together  on  a  joint  charge,  for  they 
may  merely  have  been  availing  themselves  of  the  same  con- 
venient opportunity  of  leaving.  Nor  is  desertion,  unless  in 
execution  of  a  conspiracy,  chargeable  as  a  joint  offense. 
(Digest,  p.  484,  II,  D,  7.)  In  joint  charges  the  form  of 
the  charge  does  not  differ  from  that  in  other  charges.  The 
form  of  specification  will  read  as  follows : 

In  that  Private ,  Company  ,  —     -  Infantry ;  Private 

,  Company  , Infantry ;  and  Private ,  Com- 
pany   ,  Infantry,  acting  jointly,  and  in  pursuance  of  a 

common  intent,  did  [here  allege  the  offense  in  the  language  prescribed 
where  the  offense  is  committed  by  only  one  person]. 

The  right  of  challenge  (including  the  right  to  one  separate 
individual  peremptory  challenge)  may,  of  course,  be  exercised 
separately  by  each  of  the  accused. 

70.  CHARGES  NOT  TO  BE  PREFERRED  UPON  UNCORROBORATED 
CONFESSION. — Charges  should  not  be  preferred  for  an  offense 
unless  there  is  some  evidence  other  than  the  confession  of 
the  accused  that  the  offense  has  been  committed.    This  ap- 
plies particularly  in  cases  of  fraudulent  enlistment.     The 
mere  confession  by  the  accused  that  he  had  prior  service,  or 
was  under  a  certain  disability  at  the  time  he  enlisted,  and 
concealed  that  fact,  should  not  be  made  the  basis  for  charges 
unless  there  is  something  confirming  the  confession.  Charges 
should  not  be  preferred  in  such  cases  until  corroborating 
evidence  that  the  offense  was  committed  has  been  secured, 
or  that,  the  existence  of  such  evidence  being  ascertained, 
the  necessary   steps  to  obtain  it  have  been  taken.      (See 
par.  225.) 

71.  CHARGES   FOR   PRIVATE   INDEBTEDNESS. — The   military 
authorities  will  not  attempt  to  discipline  officers  and  sol- 

48 


COURTS-MARTIAL PROCEDURE  PRIOR  TO  TRIAL.      ^f    72 

diers  for  failure  to  pay  disputed  private  indebtedness  or 
claims — that  is,  indebtedness  or  a  claim  where,  in  the  opin- 
ion of  the  military  authorities,  there  is  a  genuine  dispute  as 
to  the  facts  or  law — nor  will  the  military  authorities  attempt 
to  decide  such  disputed  indebtedness  or  claims.  If  the 
indebtedness  is  disputed  the  creditor  should  resort  to  the 
civil  courts  to  establish  the  liability.  If,  in  the  opinion  of 
the  military  authorities,  the  facts  and  law  are  undisputed  and 
there  appears  to  the  military  authorities  to  be  a  private 
indebtedness,  and  the  officer  or  soldier  does  not  claim  to 
have  a  legal  or  equitable  set-off  or  counterclaim  to  urge 
against  it,  an  officer  may  be  brought  to  trial  if  his  failure 
is  considered  to  be  a  violation  of  A.  W.  95  or  A.  W.  96, 
and  a  soldier  may  be  tried  if  his  failure  is  considered  to  be 
a  violation  of  A.  W.  96,  but  no  action  will  be  taken  by  the 
military  authorities  to  enforce  payment.  If  an  officer  or 
soldier  by  his  conduct  in  incurring  the  indebtedness  or  by 
his  attitude  toward  it  or  his  creditor  thereafter  reflect  dis- 
credit upon  the  service  to  which  he  belongs,  he  should  be 
brought  to  trial  for  his  misconduct.  If  the  facts  and  law, 
in  the  opinion  of  the  military  authorities,  are  undisputed 
and  there  appears  to  the  military  authorities  to  be  no  in- 
debtedness, the  department  will  take  no  further  action. 
Where  a  soldier  was  largely  indebted  and  failed  to  pay  his 
indebtedness  and  the  commanding  officer  denied  the  soldier 
all  pass  privileges  until  the  indebtedness  was  paid,  it  was  held 
that  such  action  on  the  part  of  the  commanding  officer  con- 
stituted an  attempt  to  enforce  payment  of  the  indebtedness 
and  was  contrary  to  the  policy  of  the  War  Department  and 
such  action  should  be  revoked.  (Digest,  p.  878,  IV.) 

72.  NUMBERING    CHARGES    AND    SPECIFICATIONS. —  Where 
there  are  several  specifications  under  one  article,  the  usual 
procedure  is  to  place  them  all  under  one  charge,  rather  than 
to  make  several  charges  with  one  specification  under  each. 
Where  there  are  several  specifications  under  one  charge  they 
will  be  consecutively  numbered,  and  where  there  are  several 
charges,  the  charges  will  be  consecutively  numbered. 

73.  ADDITIONAL    CHARGES. — New    and    separate    charges 
which  are  preferred  after  others  have  been  preferred  are 
known    in   military   law    as   "  additional    charges."      Such 

21358°— 20 4  49 


^[74  CHAPTER  VI. 

charges  may  relate  to  past  transactions  which  were  not 
known  by  or  brought  to  the  attention  of  the  person  framing 
the  original  charges  at  the  time  they  were  preferred ;  or  they 
may,  as  is  more  frequent,  arise  from  acts  of  the  accused  sub- 
sequent to  the  time  the  original  charges  were  preferred.  Thus, 
if  after  charges  have  been  preferred  he  commits  a  "  breach 
of  arrest,"  an  additional  charge  will  properly  be  preferred  in 
the  case,  and  should  be  designated  as  an  "  additional " 
charge.  Charges  of  this  character  do  not  require  a  separate 
trial,  but  may  and  preferably  should  be  tried  by  the  same 
court  that  tries  the  original  charges,  and  at  the  same  time, 
subject  to  the  limitations  regarding  investigation  and  service 
of  charges  contained  in  A.  W.  70.  (See  paragraphs  75,  76, 
78a,  and  76b,  infra.)  If  practicable  to  consolidate  the  two  sets 
of  charges  this  should  be  done,  otherwise  the  second  set  will 
be  denominated  "  additional  "  charges.  After  the  court  has 
been  duly  sworn  to  try  and  determine  "  the  matter  now  be- 
fore it "  additional  charges  which  the  accused  has  had  no 
notice  to  defend  and  regarding  which  the  right  to  challenge 
has  not  been  accorded  him,  can  not  be  introduced  or  the  ac- 
cused required  to  plead  thereto.  Such  charges  must  await  a 
separate  trial.  (See  Winthrop,  pp.  225,  226.) 

74.  RULES  TO  BE  OBSERVED  IN  PLEADING. —  (a)  Statement 
of  charge. — The  charge  should  be  limited  to  a  statement  of 
the  article  violated,  as  "  Violation  of  the  fifty-eighth  article 
of  war,"  or  "  Violation  of  the  eighty-fifth  article  of  war." 
Common  law  and  statutory  crimes,  not  specified  in  the  Arti- 
cles of  War,  over  which  courts-martial  have  jurisdiction, 
should,  if  not  capital,  be  charged  under  A.  W.  96. 

(b)  Statement  of  Specification. — The  specification  must 
be  appropriate  to  the  charge.  The  offense  must  be  distinctly  and 
accurately  described  in  the  specification  and  the  utmost  care 
must  be  exercised  that  every  element  of  the  offense,  as  denounced 
at  common  law  or  in  the  article  of  war,  or  other  statute,  is  set 
forth.  (See  forms,  Appendix  6.)  More  specifically,  (1)  the 
name,  rank,  title,  and  organization  of  the  accused  person,  if 
he  belongs  to  the  Army  of  the  United  States,  will  be  stated; 
or  if  he  is  a  civilian  or  other  person  not  belonging  to  the  Army 
of  the  United  States,  he  will  be  so  described  that  it  appears 


50 


COURTS-MARTIAL PROCEDURE  PRIOR  TO   TRIAL,.      ^f    74 

that  he  is  a  person  subject  to  military  law,  or  that  he  is  by 
statute,  or  by  the  law  of  war,  subject  to  trial  by  military 
tribunals;  and  (2)  the  facts  that  constitute  the  offense 
charged,  and  each  element  thereof,  will  be  set  out  briefly,  but 
clearly,  together  with  the  place  and  time  of  commission. 
The  specification  need  not,  however,  possess  the  technical 
nicety  of,  or  the  same  fullness  of  detail  as  is  required  in,  an 
indictment  at  common  law.  In  general,  a  bald  statement  of 
the  facts  in  simple  and  concise,  but  accurate,  language,  in  any 
such  manner  as  to  enable  a  person  of  common  understanding  to 
know  what  is  intended  and  for  exactly  what  offense  it  is  con- 
templated the  accused  be  tried,  is  sufficient;  but  this  does  not 
dispense  with  the  requirement  that  every  element  of  the  offense 
must  be  set  forth.  The  failure  to  set  forth  any  essential  ele- 
ment of  the  offense  renders  the  specification  defective.  (See 
pars.  15S<z,  and  15S&,  infra.) 

(c)  Alternative    Pleading. — A    specification    should    not 
allege  two  offenses  in  the  alternative.     For  example,  an 
offense  under  A.  W.  84  can  not  be  charged  by  the  words,  "  did 
sell  or  through  neglect  lose."    If,  as  the  result  of  an  investi- 
gation, there  is  doubt  whether  the  property  has  been  sold  or 
lost,  both  offenses  may  be  charged  under -separate  specifica- 
tions.   Care  will  be  taken  in  every  case  where  an  article  of 
war  includes  two  or  more  offenses  to  see  that  each  specifica- 
tion alleges  but  a  single  offense.     (See  Digest,  p.  487,  II,  D, 

11,  d.) 

(d)  Evidence  Not  to  Be  Pleaded. — It  is  not  technically 
good  pleading  in  alleging  an  offense  to  state  the  circum- 
stances or  evidence  proving  or  tending  to  prove  it,  such  as 
the   acts,  occurrences,   and  matters   of   description,   which 
should  properly  form  part  of  the  testimony  of  witnesses; 
but  there  is  no  objection  to  stating  very  briefly  in  the  speci- 
fication the  immediate  result  or  effect  of  the  act  charged  as 
a  circumstance  of  description  illustrating  the  character  and 
extent  of  the  offense  committed.    For  instance,  in  charging 
a  striking  or  doing  a  violence  to  a  superior  officer  under 
A.  W.  64,  it  is  allowable,  in  a  case  where  the  assault  was 
fatal,   to    add   in    the   specification,   "thereby   causing   his 
death",  as  indicating  the  measure  of  violence  employed. 


If    74  CHAPTER  VI. 

(Digest,  p.  488,  II,  D,  14,  a.)  Unnecessarily  "pleading  the 
evidence "  does  not  render  the  specification  fatally  defective. 
But  circumstances  thus  alleged  in  detail,  even  though  unneces- 
sarily, must  be  proved  at  the  trial  as  alleged,  or  exceptions  must 
be  made  in  the  finding.  There  is  also  danger  of  variance  as  to 
details  between  the  specification  and  the  proof.  (See  par.  158b, 
infra.) 

(e)  Specific  Articles,  When  Used. — When  a  crime  or 
offense  is  specifically  provided  for  in  an  article  of  war,  the 
charge  should  regularly  be  laid  under  that  article  and  not 
under  the  general  article,  A.  W.  96.  This  rule  is  particu- 
larly to  be  observed  when  the  crime  or  offense  falls  under  an 
article  which  prescribes  a  fixed  punishment.  (See,  how- 
ever, A.  W.  37.) 

NOTE. — In  charging  offenses  against  cadets  for  violation  of  regula- 
tions of  the  Military  Academy,  the  offense,  if  covered  by  a  specific 
article  applicable  to  cadets,  will  be  laid  under  that  article  (G.  O.  64, 
War  Dept,  1906) ;  otherwise  it  will  be  laid  under  the  general  article. 

(/)  Forms  for  Charges. — The  forms  for  charges  and 
specifications  set  forth  in  Appendix  6  cover  most  of  the 
offenses  that  are  tried  by  military  courts  and  covered  in  the 
maximum-punishment  order.  These  forms  should  be  fol- 
lowed, in  the  cases  to  which  they  apply,  but  they  are  not 
mandatory. 

(g)  Time  and  Place. — The  allegations  of  the  time  and 
place  of  the  commission  of  an  offense  should  be  stated  as 
accurately  as  possible,  but  where  the  act  or  acts  charged 
extend  over  a  considerable  period  of  time  it  may  be  necessary 
to  cover  such  period  in  the  allegation.  Thus,  allegations  of 
"from  March  to  September,  1887",  and  "from  May  to 
October,  1888  ",  have  been  countenanced  in  a  case  in  which 
the  accused  was  charged  with  the  neglect  of  a  duty  that 
required  continuous  performance.  (Digest,  p.  486,  II,  D, 
10,  b.)  So,  also,  it  is  proper  to  allege  that  an  offense  was 
committed  while  "  en  route "  between  certain  points. 
(Digest,  p.  486,  II,  D,  9,  &.)  So  where  the  exact  time  or 
place  of  the  commission  of  the  offense  is  not  known  it  is 
frequently  preferable  to  allege  it  as  having  occurred  "on 
or  about "  a  certain  date  or  time,  or  "  at  or  near  "  a  certain 


52 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL,      ^f    74 

locality,  rather  than  to  aver  it  as  committed  on  a  particular 
day  or  between  two  specified  days  or  at  a  particular  place. 
There  is  no  defined  construction  to  be  placed  upon  the  words 
"  on  or  about  "  as  used  in  the  allegation  of  time  in  a  specifica- 
tion. The  phrase  can  not  be  said  to  cover  any  precise  num- 
ber of  days  or  latitude  in  time.  It  is  ordinarily  used  in 
military  pleading  for  the  purpose  of  indicating  some  period, 
as  nearly  as  can  be  ascertained  and  set  forth,  at  or  during 
which  the  offenses  charged  are  believed  to  have  been  com- 
mitted— in  cases  where  the  exact  day  can  not  well  be  named. 
And  the  same  is  to  be  said  as  to  the  use  of  the  words  "  at 
or  near  "  in  connection  with  the  averment  of  place.  (Digest, 
p.  485,  II,  D,  9,  a.)  If  the  specification  alleges  the  offense 
to  have  been  committed  " on  "  a  certain  date  or  "  at"  a  certain 
place,  the  court  in  its  findings  may,  by  exceptions  and  substi- 
tutions, find  another  date  or  place  if  the  evidence  supports 
such  amendments,  provided  the  new  date  or  place  is  suf- 
ficiently near  the  one  alleged  that  an  injustice  is  not  done 
the  accused.  In  preparing  several  specifications  under  one 
charge,  the  time  and  place  of  the  alleged  offense  will  be 
given  in  each  specification. 

(h)  Christian  Name. — The  Christian  name  of  an  accused, 
including  his  middle  name  or  names,  if  any,  in  full,  if  known 
(if  practicable,  as  appearing  on  his  service  record) ,  will  be  used 
in  preparing  charges.  In  the  case  of  a  person  in  the  military 
service  the  name  used  in  the  charges  should  correspond  to 
that  borne  by  the  accused  on  his  records  or  the  Army  register. 

(i)  Charging  under  "Alias" — If  the  accused  is  known  by 
two  names,  as  where  a  soldier  enlists  under  a  name  different 
from  that  under  which  he  was  known  in  his  prior  enlistment, 
both  the  heading  of  the  charge  and  the  specification  will 
describe  him  under  his  true  name  and  also  under  his  assumed 
name  as  an  alias. 

(j)  General  Prisoners. — In  charging  a,  general  prisoner 
with  an  offense,  the  form  of  the  charge  will  not  be  changed 
but  the  specification  will  read  as  follows: 

In  that  General  Prisoner  A B did   [here  allege  the 

offense  in  the  language  prescribed  when  it  is  committed  by  an  officer 
or  soldier]. 


53 


If    74  CHAPTER  VI. 

It  is  not  necessary  to  allege  in  the  specification  that  the 
general  prisoner  was  formerly  a  soldier,  was  tried  by  a 
general  court-martial,  and  sentenced  to  dishonorable  dis- 
charge and  a  term  of  confinement,  and  that  he  committed  the 
offense  while  serving  such  confinement.  The  words  "  general 
prisoner  "  necessarily  import  such  facts. 

NOTE. — General  prisoners  are  persons  sentenced  to  dismissal  or  dis- 
honorable discharge  and  to  terras  of  confinement  at  military  posts  or 
elsewhere. 

(k)  Change  of  Grade. — Where  the  grade  of  accused  has 
changed  since  the  commission  of  an  offense,  the  specification 
will  read  as  follows: 

In  that  Private  A B ,  Company , Infantry, 

then  sergeant,  Company , Infantry,  did,  etc. 

(1)  Written  Papers  and  Oral  Statements. — A  specification 
in  alleging  the  violation  of  an  order  which  has  been  given  in 
writing,  or  of  any  written  obligation — as  an  oath  of  alle- 
giance, parole,  etc. — should  preferably  set  forth  the  writing 
verbatim,  or  at  least  state  fully  its  substance,  and  then  clearly 
specify  the  act  or  acts  which  constitute  its  alleged  violation. 
Oral  statements  should  be  alleged  in  as  nearly  the  exact 
words  as  possible,  but  should  always  be  qualified  by  the 
words  "  or  words  to  that  effect,"  or  some  similar  expression, 
since  proof  will  generally  vary  as  to  some  word  or  words, 
particularly  if  some  time  has  elapsed  since  the  incident.  A 
similar  rule  obtains  in  cases  involving  insubordinate  or  dis- 
respectful language. 

(m)  Scandalous  and  Disgraceful  Offenses. — In  framing 
charges  it  is  permissible,  under  the  custom  of  the  service, 
after  alleging  the  facts  in  the  specification,  to  add,  "  This 
to  the  scandal  and  disgrace  of  the  military  service."  This 
form  of  charge  is  appropriate  in  cases  of  particularly  dis- 
graceful conduct  committed  in  the  presence  of  a  number  of 
persons,  especially  civilians,  or  while  the  offender  was  in 
uniform,  or  under  other  circumstances  resulting  in  pub- 
licity. 

(n)  Desertion  Followed  l>y  Fraudulent  Enlistment. — En- 
listment by  a  soldier  in  desertion  is  fraudulent.  Such  soldier 
should  be  charged  with  desertion  under  A.  W.  58,  and  with 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL,      ^f    75 

fraudulent  enlistment  under  A.  W.  54.  (Cir.  28,  War  Dept., 
1908.)  A  fraudulent  enlistment  is  no  defense  to  a  charge 
of  desertion  but  is  proof  of  such  desertion,  for  a  soldier  can 
not  be  excused  from  repudiating  a  pending  contract  by  sub- 
stituting another  in  its  place.  In  such  a  case  the  status  of 
desertion  remains,  notwithstanding  the  deserter's  presence 
in  the  military  service  under  a  fraudulent  enlistment,  until 
he  surrenders  as  a  deserter  or  is  apprehended  as  such.  For  a 
single  desertion  followed  by  a  fraudulent  enlistment,  but  one 
specification  for  desertion  will  be  preferred,  in  addition  to 
the  specification  for  fraudulent  enlistment. 

NOTE. — A.  W.  28  constitutes  a  rule  of  evidence  and  is  not  a  punitive 
article. 

(o)  Larceny  and  Sale  of  Public  Property. — In  cases  of 
larceny  of  property  (not  described  in  A.  W.  94)  where  the 
accused  has  sold  the  stolen  property,  the  charges  should  not 
include  specifications  alleging  the  sale  except  where  the 
same  has  been  made  to  an  innocent  party  and  constitutes  such 
a  fraud  upon  the  purchaser  as  to  warrant  the  preferment  of  a 
specification  based  upon  such  fraud.  Proof  of  a  subsequent 
sale  of  stolen  property  goes  to  show  intent  to  steal,  and, 
therefore,  evidence  of  such  sale  should  be  introduced  to  sup- 
port charges  of  larceny,  wherever  available.  Larceny  and 
sale  of  United  States  property  in  violation  of  A.  W.  94 
should  each  be  charged  in  separate  specifications,  since  that 
article  denounces  both  offenses. 

(p)  Wording  of  Statute  to  be  Followed. — Wherever  prac- 
ticable the  exact  words  of  the  articles  of  war  will  be  fol- 
lowed. A  person  under  the  influence  of  intoxicating  liquor 
which  incapacitates  him  mentally  or  physically  for  the 
proper  performance  of  duty  is  "  drunk."  Therefore,  under 
A.  W.  85  the  word  "  drunk  "  will  be  used.  So  in  charging 
other  offenses  involving  drunkenness  no  other  word  or  phrase 
will  be  used  as  a  substitute  for  "drunk."  Under  such 
charges  the  court  should  not  in  its  findings  substitute  such 
phrases  as  "  under  the  influence  of  intoxicating  liquor  "  and 
"  intoxicating  "  for  "  drunk." 

SECTION  II. 
ACTION  UPON  CHARGES. 

75.  SUBMISSION  OF  CHARGES. — Charges  for  trial  by  courts- 
martial  may  be  preferred  by  any  person  subject  to  military  law. 

55 


^1    75  CHAPTER  VI. 

(A.  W.  70.)  They  will  be  preferred  only  when  the  person  prefer- 
ring them  either  has  personal  knowledge  of,  or  has  investigated, 
the  matters  set  forth  therein,  and  from  such  knowledge  or  in- 
vestigation is  of  the  opinion  that  there  is  reasonable  ground  for 
believing  that  an  offense  has  been  committed,  that  the  accused 
is  guilty  of  the  offense,  and  that  the  offense  can  not  be  properly 
or  adequately  dealt  with  in  any  other  manner.  All  charges  and 
specifications  must  be  signed  by  a  person  subject  to  military  law, 
and  under  oath  either  that  he  has  personal  knowledge  of,  or  has 
investigated,  the  matters  set  forth  therein,  and  that  the  same  are 
true  in  fact,  to  the  best  of  his  knowledge  and  belief.  (A.  W.  70.) 
All  charges  for  trial  by  courts-martial  will  be  prepared  in  trip- 
licate, using  the  prescribed  form  of  charge  sheet  for  each  of  the 
three  copies.  Should  the  space  on  the  charge  sheet  be  insuffi- 
cient to  accommodate  all  the  charges  and  specifications  proposed, 
such  additional  sheets  of  ordinary  paper  will  be  used  as  may  be 
required.  In  the  preparation  of  charges  care  will  be  taken  to 
observe  the  provisions  of  paragraphs  62,  63,  64,  65,  66,  and  67, 
supra.  The  charges  and  specifications  will  be  signed  as  indi- 
cated in  the  form  on  the  prescribed  charge  sheet  (see  form,  Ap- 
pendix 5),  and  the  affidavit  thereto,  in  substantially  the  pre- 
scribed form,  will  be  sworn  to  before  any  officer,  civil  or  mili- 
tary, authorized  to  administer  oaths  (see,  as  to  the  competency 
of  military  officers  to  administer  oaths,  par.  138,  infra),  and  will 
be  forwarded,  containing  a  list  of  known  witnesses  both  for 
and  against  the  accused,  mentioning  where  they  may  be  found, 
and  a  memorandum  of  any  documentary  evidence  bearing  upon 
the  case  which  may  be  obtainable,  to  the  commanding  officer 
immediately  exercising  summary  court-martial  jurisdiction  over 
the  command  to  which  the  accused  belongs  or  pertains. 

NOTE. — The  affidavit  to  the  charges  must  state  positively  either 
that  (1)  the  affiant  preferring  the  charges  has  personal  knowledge 
of  the  matters  set  forth  therein,  or  else  (2)  that  he  has  investigated 
them  and  has  thus  satisfied  himself  of  the  facts.  It  must  clearly  ap- 
pear upon  which  ground  he  places  his  statement  of  the  truth  of  the 
facts  alleged  in  the  charges  and  specifications.  He  is  not  to  be  per- 
mitted to  say  alternatively,  as  to  any  particular  specification,  that  he 
either  has  personal  knowledge  or  has  investigated.  Such  an  indefinite 
statement  is  wholly  insufficient  to  satisfy  the  requirements  of  A.  W.  7C, 
and  will  not  be  accepted. 


56 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL.     If    76 

He  may,  however,  base  some  of  the  allegations  in  a  specification, 
or  some  of  the  specifications,  on  his  personal  knowledge,  and  others 
upon  his  investigation  of  the  facts.  In  such  cases  he  will,  in  the 
affidavit,  state  which  are  based  upon  personal  knowledge,  and  which 
upon  investigation. 

76.  Receipt  of  Charges — Action. — Upon  receiving  charges  pre- 
ferred for  trial  by  court-martial,  a  commanding  officer  will  ex- 
amine them  for  the  purpose  of  determining  whether,  on  their 
face — 

(a)  They  are  (1)  signed  by  a  person  subject  to  military 
law,  and  (2)  under  oath,  in  substantially  the  pre- 
scribed form,  either  that  the  person  preferring  them 
has  personal  knowledge  of,  or  else  that  he  has  in- 
vestigated, the  matters  set  forth  therein,  and  that 
the  same  are  true  in  fact,  to  the  best  of  his  knowl- 
edge and  belief,  as  required  by  the  seventieth  article 
of  war; 

(&)  That  the  accused  therein  named  (1)  is  a  person  sub- 
ject to  military  law  and  (2)  belongs  or  pertains  to 
his  command; 

(c)  That  the  charges  and  specifications  are  substantially 

in  the  prescribed  forms  (see  forms,  Appendices  5 
and  6) ; 

(d)  That  each  specification  (1)  states  an  oifense  cogniz- 

able by  a  court-martial  and  (2)  is  laid  under  the 
appropriate  article  of  war;  and 

(e)  That  the  specifications  and  charges  are  drawn  in 

substantial  conformity  with  the  requirements  of 
paragraph  74,  supra. 

In  case  the  charges  do  not  appear,  on  their  face,  to  be  signed 
by  a  person  subject  to  military  law,  or  if  they  are  not  properly 
signed  and  sworn  to,  or  are  not  in  proper  form,  or  appear  to  be 
defective  or  irregular  in  any  other  way,  the  commanding  officer 
may  return  them  for  correction,  or  consideration,  and  may  permit 
them  to  be  withdrawn  or  amended,  or  new  or  additional  charges 
or  specifications  to  be  preferred.  In  case  the  accused  does  not  be- 
long or  pertain  to  his  command,  the  commanding  officer  may 
either  return  the  charges,  or  transmit  them  through  channels  to 
the  commanding  officer  immediately  exercising  summary  court- 
martial  jurisdiction  over  the  command  to  which  the  accused  be- 


57 


<[f  76a  CHAPTER  vi. 

longs  or  pertains,  or  may  take  such  other  proper  action  as  cir- 
cumstances may  require,  or  superior  authority  may  direct. 

76a.  Investigation  of  Charges. — If  the  charges  and  specifica- 
tions (1)  appear  to  be  in  proper  form,  and  (2)  properly  to  allege 
one  or  more  offenses  cognizable  by  a  court-martial,  against  an 
accused,  who  is  (3)  a  person  subject  to  military  law,  and  (4) 
belongs  or  pertains  to  his  command,  the  commanding  officer  so 
receiving  them  will  proceed  as  follows : 

1.  If  the  accused  is  not  an  officer,  and  it  appears  to  the 

commanding  officer  that  the  charges  are  trivial  or 
inconsequential,  he  may  disregard  them ;  otherwise, 

2.  He  will  consider  whether  the  case  presented  is  one 

which  he  can  properly  dispose  of  under  the  one  hun- 
dred and  fourth  article  of  war;  and,  if  so,  he 
will  so  dispose  of  it.  (See  par.  336a,  infra.)  Other- 
wise, he  will  investigate  it,  as  follows: 

3.  He  will  cause  the  person  preferring  the  charges,  to- 

gether with  all  available  witnesses  mentioned  in 
the  memorandum  in  the  charges,  and  also  the 
accused,  and  any  available  witnesses  desired  by 
the  accused,  and  any  other  available  witnesses 
of  whom  he  may  learn,  to  appear  before  him 
at  a  stated  time  (to  be  fixed  either  by  standing 
orders  or  otherwise),  at  his  office  or  headquarters, 
or  other  available  place,  within  the  next  twenty- 
four  hours  (except  in  the  case  of  an  intervening 
Sunday  or  holiday,  and  then  within  the  next 
succeeding  24  hours  thereafter),  with  all  avail- 
able documentary  evidence,  including  the  service 
record  of  the  accused,  and  will  there  informally 
investigate  the  charges,  substantially  in  the  same 
manner  as  upon  a  hearing  before  a  summary 
courbxJThe  witnesses  (except  the  accused)  will  be 
sworn,  but  no  record  will  be  made  of  the  testi- 
mony, and  no  counsel  will  ordinarily  appear  either 
for  the  accused  or  for  the  prosecution  (although 
in  exceptional  cases  an  available  defense  counsel 
of  a  general  or  special  court-martial,  or  other  coun- 
sel, may  be  permitted  by  the  commanding  officer,  in 


COURTS-MARTIAL. PROCEDURE   PRIOR   TO   TRIAL,      ^f    76a 

his  discretion,  to  appear  for  the  accused,  and  a  trial 
judge  advocate  of  a  general  or  special  court-mar- 
tial, or  other  officer,  for  the  prosecution) .  At  such 
investigation  full  opportunity  will  be  given  to  the 
accused  to  cross-examine  the  witnesses  whose  state- 
ments are  unfavorable  to  him,  and  to  present  any- 
thing he  may  desire  in  his  own  behalf,  either  in 
defense  or  mitigation;  and  all  available  witnesses 
requested  by  the  accused  will  be  called  and  ex- 
amined. The  commanding  officer  will,  before  re- 
ceiving any  statement  by  the  accused,  carefully 
warn  him  that  it  is  not  necessary  for  him  to  make 
any  statement  with  reference  to  the  charges 
against  him,  but  that,  if  he  does  make  one,  it  may 
be  used  against  him.  (See  par.  225b,  infra.) 

NOTE. — If  exigent  circumstances  make  it  im- 
practicable for  the  commanding  officer  to  conduct 
any  particular  investigation  himself,  he  may  or- 
der it  to  be  made  by  the  second  in  command,  or 
by  such  other  officer  as  he  may  designate  on  ac- 
count of  rank,  experience,  and  attainments. 

4.  If,  and  whenever,  upon  such  investigation,  it  appears  to 

the  commanding  officer  that  the  charges  can  prop- 
erly be  disposed  of  by  him  under  the  one  hundred 
and  fourth  article  of  war,  he  will  so  dispose  of 
them. 

5.  If,  and  whenever  in  the  course  of  such  informal  investi- 

gation, it  appears  to  him  that  the  charges  can  not 
properly  be  disposed  of  under  the  one  hundred  and 
fourth  article  of  war,  but  are  within  the  jurisdic- 
diction  of  a  summary  court-martial  within  his 
command,  and  can  properly  be  disposed  of  by  trial 
by  such  court,  and  that  there  is  probable  cause  for 
trial,  he  will  thereupon  immediately,  without 
further  investigation,  refer  the  charges  to  a  sum- 
mary court-martial  for  trial. 

6.  If,  upon  such  informal  investigation,  it  appears  to  the 

commanding  officer  that  there  is  no  substantial 
evidence  tending  to  show  that  an  offense  has  been 
committed,  or  no  substantial  evidence  tending  to 


59 


76a  CHAPTER  vi. 

show  that  the  accused  is  guilty  of  the  offense 
charged,  he  (unless  the  accused  is  an  officer,  and 
such  commanding  officer  is  not  himself  the  officer 
exercising  general  court-martial  jurisdiction  over 
the  command)  will  dismiss  the  charges;  but  if,  in 
any  case,  he  finds  there  is  substantial  evidence 
tending  to  show  that  the  accused  (whether  or  not 
probably  guilty  of  the  offense,  or  some  of  the  of- 
fenses charged)  is  guilty  of  some  other  offense  or 
offenses,  he  may  permit  new  or  additional  or 
amended  charges  to  be  preferred  (or  may  himself 
prefer  them),  and  proceed  as  if  such  new  or  addi- 
tional or  amended  charges  had  been  among  the 
ones  originally  before  him. 
7.  If  either 

(a)  The  accused  is  an  officer,  and,  upon  such  in- 

formal investigation,  the  commanding  of- 
ficer is  of  opinion  (1)  that  the  charges  are 
not  such  as  can  be  disposed  of  under  the  one 
hundred  and  fourth  article  of  war  and  (2) 
that  trial  by  a  general  court-martial  will 
probably  be  necessary; 
or 

(b)  The  accused  is  any  person  subject  to  military 

law  other  than  an  officer,  and  upon  such  in- 
formal investigation  the  commanding  officer 
is  of  opinion  that  (1)  an  offense  has  been 
committed,  and  that  (2)  there  is  substan- 
tial evidence  tending  to  show  that  the  ac- 
cused is  probably  guilty,  and  that  (3)  the 
charges  are  not  such  as  can  be  disposed  of 
under  the  one  hundred  and  fourth  article  of 
war,  or  (4)  by  trial  before  a  summary 
court-martial  within  his  command,  and  that 
(5)  trial  by  special  or  general  court-mar- 
tial will  probably  be  necessary; 
he  will  either  himself  proceed  with  the  investiga- 
tion either  then  or  at  such  other  convenient  time 
and  place  as  he  may  determine,  or  else  he  will  refer 


COURTS-MARTIAL, — PROCEDURE  PRIOR  TO  TRIAL,     ^f    76a 

the  charges  for  further  investigation  to  the  sum- 
mary court  officer  of  the  command,  or  to  some  other 
officer  (other  than  the  officer,  if  any,  preferring  the 
charges)  whose  rank,  experience,  and  qualifications 
are  such  as  to  fit  him  for  the  performance  of  this 
important  judicial  duty. 

NOTE. — If    such    commanding    officer    is   him- 
self the  officer  exercising  general  court-martial 
jurisdiction  over  the  command,  he  will  proceed  in 
case  the  accused  is  an  officer,  in  the  same  way 
as  if  the  accused  were  not  an  officer.    No  author- 
ity   inferior    to    the    officer    exercising    general 
court-martial  jurisdiction  over  the  command  will 
dismiss    properly    drawn    charges    against    an 
officer,  except  upon  disposing  of  them  by  pun- 
ishment under  the  104th  Article  of  War. 
8.  The    officer    so    proceeding    with    the    investigation 
(whether  the  commanding  officer  himself  or  an- 
other officer)  will  examine  all  available  witnesses 
and  documentary  evidence  in  the  same  manner 
hereinbefore    directed   in   clause   No.    3    of   this 
paragraph,  except  that  he  will,  upon  such  exam- 
inartion,  reduce  the  material  testimony  given  by 
each  witness,  on  direct  examination  and  on  cross- 
examination,  to  a  clear,  succinct  statement  or  sum- 
mary (for  form,  see  Appendix  18),  which,  in  the 
presence  of  the  accused,  will  be  read  over  to  the 
witness  and  signed  and  sworn  to  by  him.     When 
it  is  not  practicable  to  obtain  personal  testimony 
from   any   distant   witness,    whose   testimony   is 
deemed  material,  either  for  the  prosecution  or  for 
the  defense,  a  signed  written  statement  from  such 
witness   will  be   obtained   by   the   investigating 
officer,  if  practicable,  of  the  testimony  which  the 
witness  would  give  if  present,  and  will  be  shown 
to  the  accused,  and  included  with  the  summaries 
of  the  testimony  of  the  witnesses  examined  in  per- 
son, among  the  documents  returned  with  the  re- 
port of  the  investigation.    Any  available  papers 
or  documents  which  may  serve  to  throw  light  on 
the  case  will  be  likewise  shown  to  the  accused. 


61 


If  76a  CHAPTER  vi. 

and  returned  with  the  report  of  the  investigation. 
Any  statement  made  by  the  accused  will  likewise 
be  reduced  to  writing,  and  will  be  read  over  to 
him,  and  he  will  be  offered  an  opportunity  to  sign 
it,  if  he  so  desires,  but  he  will  not  be  required  to 
do  so,  and  will  be  advised  that  it  is  not  necessary 
for  him  to  do  so.  Care  will  be  taken  to  insure 
that  the  accused  is  fully  advised  of  the  nature  of 
the  offense,  or  offenses,  charged  against  him,  and 
of  all  his  legal  rights  in  the  premises. 

An  officer  charged  with  the  important  duty  of 
investigating  charges  for  trial  by  court-martial 
will  maintain  throughout  the  investigation  an  at- 
titude of  judicial  fairness,  the  object  of  his  inves- 
tigation being  to  prevent  unjust  or  unnecessary 
trials  quite  as  much  as  to  establish  the  existence 
of  facts  upon  which  the  accused  may  properly  be 
brought  to  trial. 

9.  If  the  commanding  officer  shall  determine,  in  accord- 
ance with  the  provisions  of  clause  7,  supra,  of  this 
paragraph,  either  to  proceed  further  with  the  in- 
vestigation himself  or  to  refer  the  charges  for 
further  investigation,  he  will  cause  the  accused, 
in  any  case  where  he  finds  indications  of  mental 
defect,  derangement,  or  abnormality,  to  be  brought 
before  a  medical  officer  (who  should  be  a  psy- 
chiatrist, if  one  be  reasonably  available)  for  ex- 
amination as  to  his  mental  condition,  such  exami- 
nation to  concern  itself  solely  with  the  mental 
capacity  and  condition  of  the  accused,  with  a  view 
to  learning  whether  he  suffers  from  any  mental 
defect  or  derangement  marking  him  as  either  tem- 
porarily or  permanently  abnormal  or  peculiar  from 
the  medical  point  of  view.  In  such  medical  exami- 
nation no  attempt  will  be  made  to  define  his  legal 
responsibility  for  crime  or  to  apply  any  legal  tests 
or  definitions,  but  the  examination  will  be  directed 
solely  to  ascertain  whether  in  his  mental  condition 


62 


COURTS- MARTIAL PROCEDURE   PRIOR   TO   TRIAL.      *([    76<1 

there  is  any  feature  of  abnormality  which  renders 
him  not  susceptible  to  ordinary  human  motives  or 
appreciations  of  right  or  wrong,  or  to  the  normal 
control  of  his  actions,  and  as  to  whether  he  is 
capable  of  conducting  his  defense  intelligently. 
The  medical  examiner  should,  however,  endeavor 
to  ascertain,  and  should  consider  and  weigh,  the 
accused's  mental  condition  at  the  time  of  the  act 
charged,  as  well  as  at  the  time  of  such  examina- 
tion. The  medical  officer  will  report  the  result 
of  such  examination  to  the  investigating  officer  in 
writing,  stating  his  opinion  as  to  the  subjects  to 
be  considered  by  him  as  hereinbefore  prescribed, 
and  giving  his  reasons  for  his  opinions  and  con- 
clusions; and,  if  he  is  of  opinion  that  there  is 
substantial  reason  to  doubt  the  accused's  mental 
normality  and  considers  that  a  further  inquiry 
into  his  history  is  desirable,  he  may  so  recommend. 
His  report  will  be  inclosed  by  the  investigating 
officer,  with  the  other  papers  in  the  case. 
10.  The  investigating  officer  will,  if  practicable,  complete 
the  investigation  within  24  hours,  or  else  a& 
promptly  as  circumstances  will  permit,  and  (if  he 
is  not  himself  the  commanding  officer)  will  submit 
his  report  in  writing  to  the  authority  appointing 
him,  inclosing  the  summaries  of  the  testimony  of 
the  witnesses  and  all  the  papers  mentioned  in  any 
of  the  foregoing  clauses  of  this  paragraph,  and 
recommending  the  disposition  which  he  believes 
should  be  made  of  the  case.  His  report  will  be 
in  the  form  of  an  original  communication,  carry- 
ing the  other  documents  mentioned  as  inclosures 
thereto,  and  will  not  be  made  as  an  indorsement 
on  the  charges,  on  which  no  indorsement  will  be 
made.  The  report  will  also  include  a  reference  to 
any  known  document  or  other  matter  of  evidence 
not  inclosed,  but  which  it  is  believed  may  become 
important  or  necessary  in  the  case,  and  will  also 
include  a  statement  of  all  explanatory  or  extenu- 


76a  CHAPTER  vi. 

ating  circumstances  which  shall  have  come  to  the 
attention  of  the  investigating  officer. 

NOTE  1. — When  the  officer  immediately  exer- 
cising summary  court-martial  jurisdiction  over 
the  command  to  which  the  accused  belongs  or 
pertains  is  the  officer  preferring  the  charges,  he 
will  cause  them  to  be  investigated  by  some  officer 
other  than  himself  before  reaching  a  decision  as 
to  their  disposition;  except  (1)  in  the  case  of 
new  or  amended  or  additional  charges  preferred 
by  him  as  a  result  of  an  investigation  conducted 
by  him  or  under  his  direction,  or  (2)  where  he 
decides  to  dispose  of  them  under  the  one  hundred 
and  fourth  article  of  war  or  to  refer  them  for  trial 
to  a  summary  court-martial  within  his  jurisdic- 
tion; or  that  (3)  when  the  officer  preferring 
the  charges  is  the  only  officer  with  the  command 
and  is  of  the  opinion  that  the  case  is  one  for  spe- 
cial or  general  court-martial  he  may  himself  in- 
vestigate the  charges  and  make  the  prescribed 
report. 

NOTE  2. — The  report  of  the  investigation, 
summaries  of  the  testimony  of  the  witnesses,  re- 
port, if  any,  of  the  medical  officer,  and  all  other 
papers  prepared  in  connection  therewith  and  in- 
dorsements thereon,  will  be  upon  paper  of  legal- 
cap  size;  and,  if  in  typewriting,  will  be  prepared 
in  triplicate.  If  in  longhand,  only  originals  will  be 
prepared,  without  copies,  and  in  case  of  ulti- 
mate reference  to  a  special  or  general  court- 
martial  for  trial,  two  copies  will  be  prepared  at 
the  headquarters  at  which  the  reference  for 
trial  is  ordered. 

NOTE  3. — Bulky  reports  or  official  documents 
will  not  ordinarily  be  appended  or  copied,  but 
listed,  and  the  place  where  they  may  be  found 
stated  in  the  report. 

11.  From  this  investigation  the  commanding  officer  will 
decide  what  disposition  is  to  be  made  of  the 
charges,  and  will  either  (1)  dismiss  them  (unless 
the  accused  is  an  officer  and  the  commanding  officer 
is  not  himself  the  officer  exercising  general  court- 
martial  jurisdiction  over  the  command),  (2)  dis- 
pose of  them  under  the  one  hundred  and  fourth 
article  of  war,  (3)  refer  them  for  trial  to  a  sum- 

64 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO   TRIAL,  ^f    76a 

mary  court-martial  within  his  jurisdiction,  or 
(4)  forward  them  for  action  by  superior  authority 
(unless  he  himself  has  power  to  convene  a  special 
court-martial  or  a  general  court-martial,  in  which 
case  he  will  consider  and  dispose  of  them  as  here- 
inafter prescribed  in  the  next  succeeding  clause  of 
this  paragraph  and  in  par.  78,  infra).  Unless 
such  commanding  officer  is  the  accuser  or  prose- 
cutor of  the  person  to  be  tried  (or  unless  the 
accused  is  an  officer),  he  will  not  ordinarily 
forward  charges  to  superior  authority,  except 
in  cases  where  he  desires  to  recommend  trial 
by  a  court-martial  not  within  his  competency  to 
appoint;  all  other  cases  he  should  dispose  of  with- 
out reference  to  higher  authority.  Action  for- 
warding the  charges  to  superior  authority  will  be 
in  the  form  of  an  indorsement  on  the  report  of  the 
investigating  officer,  forwarding  the  report  with 
all  accompanying  papers,  and  inclosing  the 
charges,  with  his  recommendations  as  to  the  dis- 
position thereof,  and  with  a  statement  of  any  ex- 
planatory or  extenuating  circumstances  which  may 
have  come  to  his  attention  (except  that,  in  case 
the  commanding  officer  has  himself  completed  the 
investigation,  such  communication  to  superior  au- 
thority will  be  in  the  form  of  an  original  com- 
munication embodying  his  report  of  the  investiga- 
tion, with  his  recommendations  and  statement  of 
any  explanatory  or  extenuating  circumstances, 
and  inclosing  the  summaries  of  the  testimony  of 
the  witnesses  and  the  other  papers  and  documents 
and  the  report,  if  any,  of  the  medical  officer,  as 
hereinbefore  prescribed  for  the  report  of  the  in- 
vestigating officer,  and  also  inclosing  the  charges), 
and  inclosing  any  available  evidence  of  any  pre- 
vious convictions  of  the  accused  proper  to  be  con- 
sidered under  paragraphs  306  and  307,  infra,  in 
conformity  with  the  requirements  of  paragraph  306. 
12.  Each  commanding  officer  superior  to  the  one  imme- 
diately exercising  summary  court-martial  jurisdic- 

21358°— 20 5 

65 


^j    76b  GHAPTBE   VI. 

tion  over  the  accused,  into  whose  hands  charges 
may  officially  come,  will  either  dismiss  them,  dis- 
pose of  them  under  the  one  hundred  and  fourth 
article  of  war,  refer  them  for  trial  to  a  court- 
martial  within  his  jurisdiction,  or  forward  them 
to  the  next  superior  authority  exercising  court- 
martial  jurisdiction  over  the  command  to  which 
the  accused  belongs  or  pertains,  as  the  circum- 
stances may  appear  to  require.  (See  par.  78, 
infra.) 

NOTE. — A.  W.  70,  as  amended  by  the  code  of  1920,  provides  (a) 
"  No  charge  will  be  referred  for  trial  until  after  a  thorough  and  im- 
partial investigation  thereof  shall  have  been  made  ";  and  (b) 
"  Charges  and  specifications  must  be  signed  by  a  person  subject  to 
military  law,  and  under  oath  either  that  he  has  personal  knowl- 
edge of,  or  has  investigated,  the  matters  set  forth  therein,  and  that 
the  same  are  true  in  fact,  to  the  best  of  his  knowledge  and  belief." 
Taking  these  two  statutory  provisions  together,  they  prohibit  (1) 
reference  of  any  charges  for  trial  without  prior  investigation  (which 
will  be  conducted  in  accordance  with  the  provisions  of  the  preceding 
paragraph  to  which  this  note  is  appended),  and  (2)  any  commanding 
officer  from  directing  charges  to  be  preferred  against  any  person, 
since  he  can  not  properly  direct  anyone  to  make  the  oath  to  the 
charges  required  by  the  statute.  He  may,  however,  of  course,  direct 
that  any  facts  or  the  conduct  of  any  person  be  looked  into  with  a 
view  t»  determining  whether  grounds  exist  for  preferring  charges. 

76b.  FURTHER  INVESTIGATION  OF  GENERAL  COURT-MARTIAL 
CHARGES. — Before  directing  trial  of  any  charge  by  general 
court-martial  or  military  commission,  the  convening  author- 
ity will  refer  it  to  his  staff  judge  advocate  for  consideration 
and  advice.  (A.  W.  70.)  Should  the  investigation  of  the 
charges  appear  not  to  be  complete  and  satisfactory,  the 
charges  may  be  returned  for  further  investigation,  to  be 
conducted,  reported,  considered,  and  acted  upon  in  like  man- 
ner as  the  original  investigation;  or,  in  a  proper  case,  the 
necessary  further  investigation  may,  when  practicable,  be 
conducted  in  like  manner  by  the  staff  judge  advocate,  an 
inspector,  or  other  suitable  officer.  Should  any  charge  or 
specification  appear  to  be  improperly  drawn,  the  staff  judge 
advocate  may  secure  its  correction  or  the  substitution  of  an- 
other through  direct  correspondence  or  personal  interview. 
The  staff  judge  advocate  may,  over  the  signature  of  the 


66 


COURTS-MARTIAL, — PROCEDURE  PRIOR  TO  TRIAL,,      ^f    76b 

person  preferring  the  charges,  and  without  any  new  oath 
thereto,  make  corrections  in  the  phraseology  of  any  charge 
or  specification,  by  addition,  substitution,  or  elimination, 
whenever  such  correction  does  not  change  the  substantive 
character  of  the  charge  or  specification,  as  preferred  by  the 
person  signing  it.  He  may  also  properly  advise  that  new  or 
substituted  specifications  and  charges,  based  upon  the  indi- 
cated competent  evidence,  be  preferred.  When  the  charges 
are  returned  J^y  tho  staff  judge  advocate  to  the  convening 
authority  he  will  in  writing  over  his  signature  (or  over  the 
signature  of  an  assistant  staff  judge  advocate,  with  an  indication 
of  approval  or  disapproval  and  any  further  comment  or  recom- 
mendations, signed  by  the  staff  judge  advocate)  advise  the  lat- 
ter (1)  whether  or  not  they  are  correct  and  complete  in  form, 
and  (2)  appropriate  to  the  indicated  competent  evidence  in 
the  case;  (3)  whether  or  not,  in  his  opinion,  a  prima  facie 
case,  justifying  trial  or  other  proceedings,  exists;  (4)  whether 
each  specification  states  an  offense  cognizable  by  court-martial; 
(5)  whether  the  indicated  competent  evidence  justifies  trial  on 
each  of  the  several  specifications  and  charges,  and,  if  not  on  all, 
then  on  which  ones;  (6)  whether  any,  and  if  so  what  part,  of  the 
evidence,  contained  in  the  summaries  of  the  statements  of  the 
witnesses  or  documents  or  other  evidence  submitted  is  incompe- 
tent or  improper  to  be  introduced  as  evidence  at  the  trial  for 
any  reason;  (7)  whether,  in  view  of  the  report,  if  any,  of  the 
medical  officer  to  the  investigating  officer,  or  on  any  other 
grounds,  there  is  reason  to  believe  that  the  accused  may  be  men- 
tally defective  or  deranged,  either  temporarily  or  permanently; 
(8)  the  age  of  the  accused;  and  will  recommend  the  disposition 
which  he  believes  should  be  made  of  the  case,  including  particu- 
larly whether  it  should  be: 

1.  Dismissed  without  trial  or  further  proceedings; 

2.  Disposed  of  under  the  one  hundred  and  fourth  article 

of  war; 

3.  Referred  for  trial  to  a  summary  court-martial; 

4.  Referred  for  trial  to  a  special  court-martial   (either 

under  the  second  proviso  to  A.  W.  12,  or  other- 
wise); 

5.  Referred  for  trial  to  a  general  court-martial  (or  to  a 

military  commission) ; 

67 


^    76C  CHAPTER  VI. 

6.  Disposed  of  by  taking  proper  steps  looking  to  the  dis- 

charge of  the  accused,  if  an  enlisted  man,  under 
the  provisions  of  Army  Eegulations,  in  case  of  in- 
dicated mental  defect  or  derangement,  or  in  other 
proper  cases ;  or  if  the  accused  be  an  officer  or  per- 
son subject  to  military  law  other  than  a  soldier,  by 
taking  proper  steps  looking  to  his  dismissal,  drop- 
ping from  the  rolls,  or  other  proper  procedure ;  and 
also 

7.  Whether  a  medical  board  should  be  convened  under 

the  provisions  of  paragraph  76c;  and 

8.  Whether  the  charges  should  be  retained  for  further 

investigation,  or  pending  the  recovery  of  the  ac- 
cused from  illness  or  from  temporary  mental  de- 
rangement, or  for  any  other  purpose;  or 

9.  The  accused  should  be  surrendered  for  trial  to  the  civil 

authorities,  or  the  case  disposed  of  in  any  other 
manner  than  in  one  of  the  ways  above  mentioned; 
and 

10.  In  case  he  recommends  separation  of  the  accused  from 

the  service  without  trial,  on  account  of  indicated 
mental  defect  or  derangement,  whether  (and  if  so, 
what)  relatives  or  civil  authorities  should  be  ad- 
vised. 

He  will  also  submit  a  form  of  order  designed  to  carry  his 
recommendations  into  effect. 

76c.  Appointment  of  Medical  Board  by  Convening  Author- 
ity.— Before  directing  the  trial  of  any  charge  by  general  court- 
martial  or  military  commission  the  convening  authority  may,  'in 
his  discretion,  either  before  or  after  receiving  the  advice  of  his 
staff  judge  advocate  upon  the  charges,  cause  a  medical  board  to 
be  convened  to  examine  the  accused,  and  will  do  so  in  every  case 
where  it  appears  to  him,  either  in  view  of  the  report,  if  any,  of 
the  medical  officer  under  paragraph  76a,  supra,  or  on  any  other 
grounds,  that  there  is  reason  to  believe  that  the  accused  may  be 
mentally  defective  or  deranged,  either  temporarily  or  perma- 
nently. Such  medical  board  will  consist  of  such  number  of  medi- 
cal officers,  not  less  than  three,  as  the  convening  authority  may 
see  fit,  at  least  one  of  whom  should,  if  practicable,  be  a  psychia- 
trist or  expert  in  mental  diseases.  There  is  ne  legal  objection 

68 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL,      ^f    76C 

to  the  appointment  as  a  member  of  such  board  of  the  medical 
officer  or  psychiatrist,  if  any,  who  examined  the  accused  under 
the  provisions  of  paragraph  76a,  supra.  Such  board  will  pro- 
ceed as  promptly  as  practicable  to  examine  the  accused,  and  will 
take  the  accused  under  its  personal  observation  for  such  reason- 
able length  of  time  as  may  be  necessary.  It  will  take  into  con- 
sideration the  report,  if  any,  of  the  medical  officer  under  para- 
graph 78a,  supra,  and  any  other  available  information  bearing 
upon  the  purposes  of  the  investigation,  and  may  in  case  of 
doubt  extend  the  examination  to  written  inquiries  directed  to 
probation  officers,  physicians,  clergymen,  school  and  prison 
authorities,  mayors,  postmasters,  etc.,  as  well  as  to  relatives 
and  friends  of  the  accused,  for  the  purpose  of  developing 
from  any  sources  which  it  deems  trustworthy  any  informa- 
tion that  may  aid  it  in  its  investigation.  Their  examination 
and  investigation  will  be  directed  to,  and  concern  itself  solely 
with,  the  same  matter  as  an  examination  by  a  medical  officer 
under  paragraph  76a,  supra,  viz,  the  determination  of  the  mental 
capacity  and  condition  of  the  accused,  with  a  view  to  learning 
whether  he  suffers  from  any  mental  defect  or  derangement 
marking  him  as  either  temporarily  or  permanently  abnormal  or 
peculiar  from  the  medical  point  of  view.  The  board  will  make 
no  attempt  to  define  or  determine  the  legal  responsibility  of  the 
accused  for  crime,  or  to  apply  any  legal  tests  or  definitions;  but 
the  examination  will  be  directed  solely  (like  that  of  an  exami- 
nation by  a  medical  officer  under  par.  76a,  supra)  to  ascertain- 
ing whether  in  the  accused's  mental  condition  there  is  any  fea- 
ture of  abnormality  which  renders  him  not  susceptible  to  ordi- 
nary human  motives  or  appreciations  of  right  or  wrong,  or  to 
the  normal  control  of  his  actions,  and  as  to  whether  he  is  capable 
of  conducting  his  defense  intelligently.  The  board  will,  how- 
ever, endeavor  to  ascertain,  and  will  consider  and  weigh  the  ac- 
cused's mental  condition  at  the  time  of  the  offense  charged,  as 
well  as  at  the  time  of  the  board's  examination. 

The  medical  board  will  make  a  written  circumstantial  report 
of  its  examination  and  investigation  to  the  convening  authority, 
appending  thereto  all  such  written  evidence  and  documents  as  it 
may  have  considered.  Such  report  will  state  its  opinion  as  a 
board,  or  individually  if  there  is  any  difference  of  opinion,  as 
to  the  subjects  to  be  considered  by  it  as  hereinbefore  prescribed, 


^f    76C  CHAPTER  VI. 

and  giving  its  reasons  for  its  opinions  and  conclusions,  and 
stating  its  conclusions  as  to  the  mental  condition  of  the  accused 
at  the  time  of  the  act  charged  and  at  the  time  of  its  examination 
of  him,  with  reference  to  any  form  of  mental  derangement,  defect, 
or  other  mental  abnormality ;  but  will  not  attempt  to  determine 
the  accused's  legal  responsibility  nor  to  apply  any  legal  defini- 
tion of  insanity  or  the  like,  the  members  confining  themselves  to 
the  facts  of  the  accused's  mental  condition  as  viewed  by  them 
as  medical  men.  The  report  should  include  in  its  description  of 
the  accused's  mental  condition  (both  as  to  the  time  of  the  al- 
leged commission  of  the  offense  and  as  to  the  time  of  their 
examination  of  the  accused)  an  opinion  as  to  whether  he  lacked 
the  ordinary  understanding  of  right  and  wrong  and  whether 
he  lacked  the  ordinary  capacity  to  control  himself  from  wrong 
actions. 

It  should  also  specifically  express  an  opinion  as  to  whether  or 
not  he  is  capable  of  conducting  his  defense  intelligently;  on 
this  point  the  inquiry  relates  particularly  to  the  time  of  trial 
and  should  consider  whether  the  accused  is  mentally  capable  of 
communicating  intelligently  with  his  counsel,  of  understanding 
the  nature  of  the  proceedings,  and  of  doing  the  things  necessary 
for  an  adequate  presentation  of  his  defense, 

If  the  opinion  or  report,  or  any  material  part  thereof,  is 
founded  upon  information  received  by  correspondence  or  inter- 
views, with  third  persons,  the  report  will  specifically  so  state, 
noting  briefly  the  data  so  obtained,  and  will  mention  the  persons 
giving  such  material  information,  with  their  names  and  ad- 
dresses, so  that  the  convening  authority  as  well  as  (in  case  of 
ultimate  reference  of  the  charges  for  trial)  both  the  trial  judge 
advocate  and  the  accused  and  Ms  counsel  may  be  informed 
thereof,  to  enable  them  to  make  further  inquiries  and  to  summon 
such  persons  for  examination  at  the  trial  if  desired. 

The  convening  authority  upon  the  receipt  of  the  report  of  the 
medical  board  will  refer  it  to  his  staff  judge  advocate  for  con- 
sideration and  advice  in  connection  with  the  other  papers  in  the 
case,  and  may  in  cases  where  mental  defect  or  derangement  of 
the  accused,  either  temporary  or  permanent,  is  indicated,  and 
where,  except  for  such  indication,  reference  of  the  charges  for 
trial  would  be  proper,  take  action  as  follows,  as  he  may  deter- 
mine! 

70 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL.      ^[    76C 

1.  If  he  concludes  that  the  accused  is  at  the  time  not 

capable  of  conducting  his  defense  intelligently,  but 
that  after  a  reasonable  lapse  of  time  the  accused  will 
become  capable  of  so  doing,  he  may  direct  that  fur- 
ther action  on  the  charges  be  suspended  for  the  time 
being,  pending  such  further  action  as  he  may  after- 
wards determine. 

2.  If  he  concludes  that  the  accused,  whether  or  not  at  the 

time  capable  of  conducting  his  defense  intelligently, 
is  a  person  of  such  mental  abnormality  that  the  pur- 
poses of  justice  and  discipline  will  not  be  well  served 
by  his  trial  and  punishment,  and  that  his  further 
continuance  in  the  military  service  will  be  detri- 
mental to  the  service,  he  may  properly  direct  that 
further  action  on  the  charges  be  suspended  and  that 
proper  steps  be  taken  looking  to  the  discharge  or 
retirement  of  the  accused  or  his  commitment  to  St. 
Elizabeths  Hospital,  or  take  such  other  steps  as  may 
be  appropriate. 

3.  If  he  concludes  that  the  accused,  whether  or  not  capa- 

ble of  conducting  his  defense  intelligently,  was  at 
the  time  of  the  offense  charged  in  such  an  abnormal 
mental  condition  that  there  is  no  probable  ground 
for  finding  him  guilty,  by  reason  of  probable  lack  of 
criminal  intent  as  defined  in  subparagraph  (g)  of 
paragraph  219,  infra,  he  may  properly  direct  that 
the  charges  be  dismissed,  and  should  take  such 
further  steps,  if  any,  as  the  facts  may  suggest. 

4.  If  he  refers  the  charges  for  trial  he  will  cause  the 

report  of  the  medical  board  and  one  copy  thereof  to 
be  sent  to  the  trial  judge  advocate  with  the  charges 
and  the  other  accompanying  papers.  (See  par,  219, 
infra.) 

NOTE. — In  case  the  accused  is,  without  trial,  discharged  under 
Army  Regulations  or  otherwise  separated  from  the  service  or 
retired  because  of  indicated  mental  defect  or  mental  derange- 
ment, The  Adjutant  General  will  so  notify  such  person's  rela- 
tives and  any  other  proper  local  civilian  authorities  with  a  view  ta 
enabling  measures  to  be  taken,  if  desired,  for  the  proper  care  of 
such  person  and  the  protection  of  the  public.  To  that  end,  a  conven- 


71 


^[  77a  CHAPTER  vi. 

Ing  authority  directing  proceedings  taken  with  a  view  to  the  sepa- 
ration from  the  service  without  trial  of  an  accused  person  because 
of  such  indicated  mental  defect  or  derangement  will  so  advise  The 
Adjutant  General,  giving  any  available  information  as  to  the  rela- 
tives of  the  accused  and  as  to  local  civilian  officers  who  should 
properly  be  so  notified. 

77a.  Prompt  Action  Required. — When  any  person  subject  to 
military  law  is  placed  in  arrest  or  confinement,  immediate  steps 
will  be  taken  to  try  the  person  accused  or  to  dismiss  the  charges 
and  release  him.  Any  officer  who  is  responsible  for  unnecessary 
delay  in  investigating  or  carrying  the  case  to  a  final  conclusion 
shall  be  punished  as  a  court-martial  may  direct.  (A.  W.  70.)  If  a 
person  held  for  trial  by  a  general  court-martial  is  placed  in  arrest 
or  confinement,  the  commanding  officer  will,  within  eight  days 
after  the  accused  is  arrested  or  confined,  if  practicable,  forward 
the  charges  to  the  officer  exercising  general  court-martial  juris- 
diction and  furnish  the  accused  a  copy  of  such  charges.  If  the 
same  be  not  practicable  he  will  report  to  superior  authority  the 
reasons  for  delay. 

NOTE. — The  provision  of  the  law  making  any  officer  who  is  re- 
sponsible for  unnecessary  delay  in  investigating  or  carrying  a  case 
to  final  conclusion  punishable  at  the  discretion  of  a  court-martial 
(A.  W.  70)  was  introduced  by  the  code  of  1920. 

77b.  Service  of  Charges  and  Other  Papers  on  Accused. — The 
trial  judge  advocate  will  cause  to  be  served  upon  the  accused 
a  copy  of  the  charges  upon  which  trial  is  to  be  had,  together 
with  the  order  of  reference  for  trial  and  the  report  of  the 
investigating  officer,  with  the  summaries  of  the  testimony  of 
the  witnesses  and  any  exhibits  thereto,  and  the  report,  if  any,  of 
the  medical  officer  on  the  preliminary  examination,  and,  all  other 
inclosures  and  indorsements  thereon,  including  the  report  of 
the  staff  judge  advocate  and  the  report,  if  any,  of  the  medical 
board  under  paragraph  76c,  supra.  A  failure  so  to  serve  such 
charges  will  be  ground  for  continuance  unless  the  trial  be  had 
on  charges  theretofore  otherwise  officially  furnished  the  accused. 
(A.  W.  70.) 

78.  DETERMINATION  OF  PROPER  TRIAL  COURT. — When  an 
officer  who  exercises  court-martial  jurisdiction  receives 
charges  against  any  person  subject  to  military  law,  or  triable 
before  a  military  tribunal  under  the  law  of  war,  it  is  his  duty 


72 


COURTS-MARTIAL — PROCEDURE  PRIOR  TO  TRIAL,,      If    79 

to  consider  whether  such  trial  should  be  by  summary, 
special,  or  general  court-martial,  or  other  military  tribunal. 
Subject  to  jurisdictional  limitations,  he  should  not  withhold 
charges  from  trial  by  special  or  summary  court  solely  for 
the  reason  that  the  maximum  limit  of  punishment  is  beyond 
the  jurisdiction  of  such  courts  to  impose.  An  officer  compe- 
tent to  appoint  a  general  court-martial  may,  when  in  his  judg- 
ment the  interests  of  the  service  shall  so  require,  cause  any 
particular  case  to  be  tried  by  a  special  court-martial  notwith- 
standing the  limitations  upon  the  jurisdiction  of  the  special 
court-martial  as  to  offenses  set  out  in  A.  W.  13;  except  that  the 
limitations  upon  jurisdiction  as  to  persons  and  upon  punishing 
power  set  out  in  A.  W.  13  must  be  observed.  (A.  W.  12.) 
On  the  other  hand,  he  should  not  refer  to  a  special  or  sum- 
mary court  offenses  which y  by  reason  of  their  inherent  grav- 
ity, or  of  the  circumstances  surrounding  their  commission, 
merit  greater  formality  of  trial  or  more  condign  punishment 
than  is  found  in  the  procedure  or  jurisdiction  of  such  courts. 
As  a  general  rule  no  case  should  be  tried  by  a  special  or 
general  court-martial  in  which,  under  the  apparent  cir- 
cumstances of  the  case,  adequate  punishment  can  be  imposed 
by  a  summary  court-martial;  and  no  case  should  be  tried 
by  a  general  court-martial  in  which,  under  the  apparent 
circumstances  of  the  case,  including  the  previous  military 
record  of  the  accused,  adequate  punishment  can  be  imposed 
by  a  summary  or  special  court-martial.  Beyond  this  no 
fixed  rule  can  be  laid  down  and  the  matter  must  be  decided 
after  careful  consideration  by  commanding  officers,  with  the 
benefit  of  the  advice  of  their  staff  judge  advocates. 

79.  DISPOSITION  OF  COPIES  OF  CHARGES. — (a)  When  trial 
is  to  be  had  by  summary  court  martial  the  original  charge 
sheet  (see  par.  75,  supra),  will  be  completed  as  the  record  of 
trial.  This  record  will  be  delivered  to  the  adjutant  who 
will,  after  noting  the  necessary  data  on  the  pay  card  of  the 
accused,  initial  it  in  the  place  provided  and  transmit  it  to 
the  company  or  other  commander,  who  will,  after  making  the 
necessary  entries  on  the  service  record,  initial  and  return  it  to 
the  commanding  officer  who  appointed  the  court,  in  whose  office 
it  will  be  carefully  preserved.  A  certified  copy  thereof  will 


73 


^f    80  CHAPTER  VI. 

be  forwarded  to  The  Adjutant  General  of  the  Army  by  the 
adjutant  with  the  memorandum  of  transmittal  of  reports 
of  changes  for  the  day  upon  which  the  sentence  was  ap- 
proved, for  file  with  the  record  of  the  accused.  The  re- 
maining copy  duly  certified  will,  with  the  least  practicable 
delay,  be  transmitted  as  the  required  report  of  trial  to  the 
officer  exercising  general  court-martial  jurisdiction  over  the 
command,  there  to  be  filed  in  the  office  of  the  staff  judge  advo- 
cate until  the  statistical  information  required  for  the  annual 
report  of  the  staff  judge  advocate  has  been  secured,  when  it 
may  be  destroyed. 

(Z>)  When  trial  is  to  be  had  by  special  or  general  court- 
martial  the  charges  with  the  order  of  reference  for  trial 
indorsed  thereon,  together  with  the  report  of  the  investigating 
officer  with  the  summaries  of  the  testimony  of  the  witnesses 
and  the  report,  if  any,  of  the  medical  officer  on  the  preliminary  ex- 
amination and  all  other  inclosures,  and  indorsements  thereon, 
including  the  report  of  tlic  staff  judge  advocate,  and  the  re- 
port, if  any,  of  tlie  medical  board  under  paragraph.  76c,  supra, 
and  one  copy  of  such  charges  and  of  such  order  of  reference 
and  of  all  such  other  papers  and  documents  will  be  referred 
to  the  trial  judge  advocate  direct,  the  copy  to  be  furnished 
by  him  to  the  accused  (see  par.  77b) ;  and  the  other  copy 
will  be  used  for  record  purposes  in  the  office  of  the  officer 
appointing  the  court.  The  originals  will  be  returned  by  the 
trial  judge  advocate  with  the  record  of  the  trial  to  the  officer 
appointing  the  court,  and  in  the  case  of  a  general  court  martial 
will  be  forwarded  with  the  record  of  trial  to  the  Judge  Advo- 
cate General. 

80.  SERVICE  or  CHARGES  UPON  ACCUSED. — In  order  that 
the  accused  may  have  sufficient  time  to  prepare  for  his  de- 
fense it  is  provided  by  A.  W.  70  that  in  time  of  peace  no 
person  shall,  against  his  objection,  be  brought  to  trial  be- 
fore a  general  court-martial  within  a  period  of  five  days  sub- 
sequent to  the  service  of  charges  upon  him,  (See  par.  79b, 
supra.) 


74 


CHAPTER  VII. 
COURTS-MARTIAL—ORGANIZATION. 


Section  I:  The  members: 

81.  Place  of  meeting — Duties  of  members 76 

81a.  Appointment    of    law    member    for    general    courts- 
martial 76 

82.  Uniform 77 

83.  Seating  of  court 77 

84.  Roll  call 77 

85.  Absence  of  member 78 

85a.  Absence  of  law  member 78 

86.  Decorum  to  be  observed 78 

87.  Control  of  court  over  accused 79 

88.  Accused  not  to  be  tried  in  irons 79 

89.  Duties  of  the  president 79 

89a.  Duties  of  the  law  member  of  a  general  court-martial-  81 

90.  Voting — Method   of 83 

90a.  Number    of    votes    required — Death    sentence,    when 

lawful 84 

91.  Closed  sessions 84 

92.  Sitting  with  closed  doors 85 

93.  Change   in  membership 85 

Section  II :  The  trial  judge  advocate : 

94.  Selection 86 

95.  General   duties 86 

96.  Duty  toward  accused 87 

97.  Examination  of  charges 88 

98.  Whole  truth  to  be  presented 88 

99.  Legal  adviser  of  the  court 88 

100.  Freedom  in  conducting  case 89 

101.  Closed  sessions 89 

102.  Accuser  or  prosecutor 89 

103.  Expediting  trials 90 

lOSa.  Penalty  for  delay 90 

104.  Weekly  reports 90 

105.  Detail  of  orderly 90 

Section  III :  Assistant  trial  judge  advocate : 

106.  Appointment 90 

107.  Duties 91 

Section  IIIA :  The  defense  counsel : 

107a.  Selection '. 92 

107b.  General  duties 92 

107c.  Whole  truth  to  be  presented 92 

107d.  Legal  adviser  to  the  court 93 

107e.  Freedom  in  conducting  the  case 93 

107f.  Personal  interest— Relief  from  duty 93 

107g.  Detail  of  orderly 93 

75 


TI    81  CHAPTER  VII. 

Section  IIIB  :  Assistant  defense  counsel :  Page. 

107h.  Appointment 94 

107L  Duties 94 

Section  IV :  Individual  counsel  for  the  accused : 

108.  Appointment 94 

109.  Duty  of  officer  as  individual  counsel  for  the  accused —  95 
109a.  Opportunity  to  prepare  for  trial 90 

110.  Right  to  interview  the  accused 96 

111.  Witnesses,  how  questioned  during  trial 96 

Section  V:  Reporter: 

112.  Employment 96 

112a.  Duties 97 

113.  Compensation :_  97 

Decisions   (a)   to   (f) 97 

114.  Disposition  of  vouchers 98 

115.  Detail  of  soldier 99 

116.  Time  limit  for  completing  record 99 

117.  Carbon  copies  of  the  record 99 

118.  Extra  compensation  for  clerical  duties 100 

Section  VI:  Interpreter: 

119.  Employment  and  pay 100 


SECTION  I. 
THE  MEMBERS. 

81.  PLACE  OF  MEETING — DUTIES  OF  MEMBERS. — The  au- 
thority appointing  a  general  or  special  court-martial  desig- 
nates the  place  for  holding  the  court,  hour  of  meeting,  the 
members  of  the  court,  including  the  law  member  for  every 
general  court-martial  (A.  W.  8),  the  trial  judge  advocate  and 
his  assistants,  if  any,  and  the  defense  counsel  and  his  assistants, 
if  any.  A  general  or  special  court-martial  assembles  at  its 
first  session  in  accordance  with  the  order  convening  it ;  there- 
after, according  to  adjournment.  Courts  will  be  assembled 
at  posts  or  stations  where  trial  will  be  attended  with  the  least 
expense.  A  member  stationed  at  the  place  where  the  court 
sits  is  liable  to  duty  with  his  command  during  adjournment 
from  day  to  day.  Subject  to  any  instructions  that  may  be 
given  by  the  authority  that  appoints  the  court,  the  court  will 
determine  the  hours  of  holding  its  sessions. 

81a.  Appointment  of  Law  Member  for  General  Courts-Mar- 
tial.— The  authority  appointing  a  general  court-martial  shall 


76 


COURTS-MAKTIAL — ORGANIZATION.  If    82 

detail  as  one  of  the  members  thereof  a  law  member,  who  shall 
be  an  officer  of  the  Judge  Advocate  General's  Department,  except 
that  when  an  officer  of  that  department  is  not  available  for  the 
purpose  the  appointing  authority  shall  detail  instead  an  officer 
of  some  other  branch  of  the  service  selected  by  the  appointing 
authority  as  especially  qualified  to  perform  the  duties  of  law 
member. 

NOTE. — For  the   duties  of  a  law  member  of  the  court,  see  infra, 
paragraph  89a,  "  Duties  of  the  Law  Member." 
As  to  his  rank,  see  supra,  paragraph  12  (c). 

82.  UNIFORM. — For  regulations  regarding  uniform  to  be 
worn  by  members  of  courts-martial,  the  trial  judge  advocate, 
the  assistant  trial  judge  advocates,  the  defense  counsel,  the  assist- 
ant defense  counsel,  the  accused,  and  witnesses,  see  Regu- 
lations for  the  Uniform  of  the  United  States  Army.     In  any 
case  of  doubt  (as  where  the  court  consists  of  members  but 
recently  mustered  into  the  service) ,  the  president  of  the  court 
will  designate  the  uniform  in  the  notice  sent  to  members, 
trial  judge  advocate,  and  defense  counsel,  and  to  their  assist- 
ants, if  any,  notifying  them  of  the  place  and  hour  of  meeting 
of  the  first  session. 

83.  SEATING  OF  COURT. — When  the  court  is  ready  to  pro- 
ceed it  is  called  to  order  by  the  president.     Members  will  be 
seated  according  to  rank,  alternately  to  the  right  and  left 
of  the  president;  except  that  the  law  member  of  a  general 
court-martial  (if  he  is  not  the  president  nor  the  next  ranking 
member)  will  be  seated  next  to  the  president,  on  the  left.     The 
trial  judge  advocate,  the  defense  counsel,  the  assistant  trial 
judge  advocates,  and  the  assistant  defense  counsel,  the  accused, 
and  his  counsel,  are  seated  so  as  to  be  most  easily  seen  and 
heard  by  all  the  members  of  the  court.     The  reporter  should 
be  seated  near  the  trial  judge  advocate. 

84.  ROLL   CALL. — At  the  beginning  of  each  session  the 
trial  judge  advocate  notes  in  the  record  the  presence  or  ab- 
sence of  the  members  of  the  court,  of  the  trial  judge  advocate 
and  assistant  trial  judge  advocates,  the  defense  counsel  and 
assistant  defense  counsel,  the  accused  and  any  other  counsel  for 
the  accused  upon  calling  their  names  or  by  informally  noting 
the  presence  or  absence  of  each  of  them,     (See  Appendices  10 


77 


•J   85  CHAPTER  VII. 

and  11,  forms  of  record  of  general  and  special  courts-mar- 
tial.) When  the  accused  appears  before  the  court  for  the 
first  time  the  trial  judge  advocate  will  announce  his  name  to 
the  court,  and  also  whether  he  has  any  counsel  besides  the  de- 
fense counsel  and  assistant  defense  counsel  of  the  court,  and,  if 
so,  the  names  of  such  other  counsel. 

NOTE. — For  number  necessary  to  constitute  a  quorum  of  a  general 
or  special  court-martial  and  the  procedure  to  be  taken  when  the 
number  is  reduced  below  5,  see  paragraph  7. 

85.  ABSENCE  or  MEMBER. — A  member  of  a  court-mnrtial 
who  knows,  or  has  reason  to  believe,  that  he  will,  for  a 
proper  reason,  be  absent  from  a  session  of  the  court,  will  in- 
form the  trial  judge  advocate  accordingly.    When  a  member 
of  a  court-martial  is  absent  from  a  session  thereof  the  trial 
judge  advocate  will  cause  that  fact,  together  with  the  reason 
for  such  absence,  if  known,  to  be  shown  in  the  record  of  pro- 
ceedings.   If  the  reason  for  such  absence  is  not  known,  or 
disclosed  at  the  trial,  the  trial  judge  advocate  will  cause  the 
record  to  show  the  member  as  absent,  cause  unknown.     In 
any  event,  the  appointing  authority  will  take  such  action,  if 
any,  relative  to  such  absence  as  he  may  deem  proper. 

85a.  Absence  of  Law  Member. — In  case  of  the  absence  of  the 
law  member  of  a  general  court-martial  from,  or  at  any  time  dur- 
ing, the  trial  of  a  case  which  has  been  directed  to  be  tried  with 
the  law  member  present,  or  at  a  portion  of  the  trial  of  which  the 
law  member  has  been  present,  the  court  will  take  a  recess,  or  if 
necessary  continue  the  hearing  until  the  law  member  or  another 
law  member  is  present,  or  until  directed  by  the  convening  author- 
ity to  proceed  without  the  presence  of  a  law  member,  and  in  case 
of  continuance,  will  report  the  facts  to  the  convening  authority. 

86.  DECORUM    TO    BE    OBSERVED. — Trials    before    courts- 
martial  will  be  conducted  with  the  decorum  observed  in  civil 
courts.     The  conduct  of  members   should   accordingly   be 
dignified  and  attentive.     Reading  of  newspapers  or  other 
evidence  of  inattention  by  members  of  a  court-martial  dur- 
ing its  sessions  constitutes  a  neglect  of  duty  to  the  prejudice 
of  good  order  and  military  discipline.    It  is  the  duty  of  the 
president  of  the  court  to  admonish  against  such  inattention, 
and  charges  may  be  preferred  against  a  member  who  does 

78 


COURTS-MARTIAL — ORGANIZATION.  ^    87 

not  heed  the  admonition.  A  court-martial  has  no  power  to 
punish  its  members,  but  a  member  is  liable  to  charges  and 
trial  for  improper  conduct  as  for  any  other  offense  against 
military  discipline.  Improper  words  used  by  a  member 
should  be  taken  down  in  writing  and  any  disorderly  conduct 
reported  to  the  appointing  authority.  During  the  reading 
of  the  order  appointing  the  court  and  the  arraignment  the 
trial  judge  advocate  and  Ms  assistants,  the  defense  counsel  and 
his  assistants,  the  accused  and  his  counsel,  will  stand;  while 
the  court  and  the  trial  judge  advocate  and  his  assistants  are 
being  sworn  all  persons  concerned  with  the  trial,  including 
any  spectators  present,  will  stand ;  when  the  reporter,  an  in- 
terpreter, or  a  witness  is  being  sworn,  he  and  the  trial  judge 
advocate  will  stand;  and  when  the  trial  judge  advocate,  the 
defense  counsel,  the  accused  or  his  counsel  addresses  the  court, 
he  will  rise.  (For  punishment  for  contempts,  see  Chapter  X, 
Section  I,  par.  173.) 

87.  CONTROL  or  COURT  OVER  ACCUSED. — A  court-martial 
has  no  control  over  the  nature  of  the  arrest  or  other  status 
of  restraint  of  a  prisoner  except  as  regards  his  personal 
freedom  in  its  presence.    For  the  relation  between  a  court- 
martial  and  the  accused  during  trial,  as  regards  arrest,  see 
Chapter  V,  Section  I,  particularly  par.  47  (c). 

88.  ACCUSED  NOT  TO  BE  TRIED  IN   IRONS. — The  accused 
should  not  be  brought  before  the  court  in  irons,  unless  there 
are  good  reasons  to  believe  that  he  will  attempt  to  escape  or 
to  conduct  himself  in  a  violent  manner,  but  the  fact  that  a 
prisoner  has  been  tried  in  irons  can  not  in  any  case  affect  the 
validity  of  the  proceedings. 

89.  DUTIES  OF  THE  PRESIDENT. — A  president  of  the  court 
will  not  be  announced.     The  officer  senior  in  rank  present 
will  net  as  such.    The  president  does  not,  by  virtue  of  being 
such,  exercise  command  of  any  kind.    He  is  in  no  sense  the 
commanding  officer  of  the  court,  and  can  not  by  virtue  of 
being  president  give  an  order  to  a  member.    As  the  organ 
of  the  court  he  gives  the  directions  necessary  to  the  regular 
and  proper  conduct  of  the  proceedings ;  but  a  failure  to  com- 
ply with  a  direction  given  by  him,  while  it  may  constitute 
a  neglect  to  the  prejudice  of  good  order  and.  military  dis- 


79 


Tf    89  CHAPTER  VII. 

cipline,  can  not  properly  be  charged  as  a  violation  of  the 
sixty- fourth  article  of  war.  (Digest,  p.  508,  VI,  G,  3.) 
Neither  the  court  nor  the  president  is  authorized  to  place  the 
trial  judge  advocate  or  tlie  defense  counsel  in  arrest.  Only 
the  proper  commanding  officer  can  impose  arrest.  It  is  the 
duty  of  the  commanding  officer  to  secure  the  attendance  of 
the  accused  before  the  court.  (Digest,  p.  509,  VII,  C,  2;  id., 
VII,  C,  3.)  The  president  is  the  presiding  officer  of  the 
court,  and  as  such  is  the  organ  of  the  court  to  maintain 
order  and  conduct  its  business.  In  addition,  he  has  the  duties 
and  privileges  of  other  members.  He  has  an  equal  vote  with 
other  members  in  deciding  all  questions  submitted  to  a  vote 
or  ballot  of  the  court,  including  challenges,  findings,  sen- 
tence, acquittal,  and  any  interlocutory  question  submitted 
to  the  vote  of  the  court  pursuant  to  the  objection  of  any 
member  to  a  ruling  of  the  president  or  of  the  law  member  under 
A.  W.  31.  He  speaks  and  acts  for  the  court  in  every  instance 
where  a  rule  of  action  has  been  prescribed  by  law,  regula- 
tions, or  its  own  resolution.  He  administers  the  oath  to  the 
trial  judge  advocate,  and  authenticates  by  his  signature  all 
acts,  orders,  and  proceedings  of  the  court  requiring  it.  (See 
Winthrop,  p.  249.)  It  is  his  duty  to  take  proper  steps  to 
insure  prompt  trial  and  disposition  of  all  charges  referred 
for  trial  and  to  keep  the  court  advised  thereof. 

Ruling  Upon  Interlocutory  Questions. — The  president  of  a  gen- 
eral court-martial  in  the  absence  of  the  law  member  of  the  court, 
and  the  president  of  a  special  court-martial  in  all  cases,  will  rule 
in  open  court  upon  all  interlocutory  questions,  other  than  chal- 
lenges, arising  during  the  proceedings.  (A.  W.  31.)  Under  this 
authority,  conferred  upon  him  by  the  thirty-first  article  of  war  as 
amended  by  the  code  of  1920,  he  will  open  and  close  the  court 
(subject  to  any  directions  relating  thereto  given  by  vote  of  the 
court),  and  will  in  open  court,  without  closing  the  court,  rule 
upon  and  determine  all  interlocutory  questions  of  every  kind 
(other  than  challenges)  arising  during  the  proceedings,  including 
questions  of  the  admissibility  of  evidence,  the  competency  of 
witnesses,  continuances,  adjournments,  recesses  of  the  court, 
motions,  and  other  questions,  and  methods  of  procedure,  such  as 
the  order  of  the  introduction  of  witnesses  or  other  evidence,  the 


80 


COURTS-MARTIAL — ORGANIZATION.  ^f    89a 

recall  of  witnesses  for  further  examination,  whether  expert  wit- 
nesses shall  be  admitted  or  called  upon  any  question,  whether  the 
court  shall  view  the  premises  where  an  offense  is  alleged  to  have 
been  committed,  and  as  to  the  competency  of  children  as  wit- 
nesses, or  of  witnesses  alleged  to  be  mentally  incompetent,  or 
whether  the  existence  of  mental  disease  or  mental  derangement 
on  the  part  of  the  accused  has  become  an  issue  in  the  trial, 
whether  the  accused  shall  be  required  to  submit  to  physical  ex- 
amination, whether  any  argument  or  statement  of  counsel  for 
the  accused  or  of  the  trial  judge  advocate  is  improper,  and  all 
other  questions  of  every  kind  (except  upon  challenges,  and  the  find- 
ings and  sentence  of  the  court) ;  provided,  however,  that  if  any 
member  object  to  any  ruling  of  the  president  upon  any  question  of 
any  kind  arising  during  the  trial  or  proceedings,  the  court  shall 
be  cleared  and  closed  and  the  question  decided  by  a  majority 
vote,  viva  voce,  beginning  with  the  junior  in  rank.  (A.  W. 
31.) 

89a.  Duties  of  the  Law  Member  of  a  General  Court-Martial. — 
(1)  The  law  member  of  a  general  court-martial,  whenever  pres- 
ent, will,  instead  of  the  president,  rule  in  open  court  on  all  in- 
terlocutory questions  other  than  challenges  arising  during  the 
proceedings.  (A.  W.  31.)  His  ruling  will  be  addressed  to  the 
president  of  the  court,  and  will  take  the  form  of  a  statement  of 
his  opinion  and  his  recommendations.  (See  form,  Appendix  9.) 
The  law  member  will  so  rule  upon  all  questions  arising  during  the 
proceedings,  except  (1)  upon  challenges,  (2)  on  the  findings,  and 
(3)  on  the  sentence. 

(2)  On  any  question  arising  on  any  objection  to  the  admissi- 
bility  of  evidence  offered  during  the  trial,  such  ruling  of  the  law 
member  is,  by  the  thirty-first  article  of  war,  made  the  decision  of 
the  court  upon  the  question,  and  will  be  so  announced  by  the 
president. 

(3)  Upon  any  other  interlocutory  question  arising  during  the 
proceedings,  such  ruling  of  the  law  member  will  be  accepted  and 
announced  by  the  president  as  the  decision  of  the  court,  unless 
either  the  president  or  any  other  member  of  the  court  objects  to 
the  ruling,  in  which  case  the  court  will  be  cleared  and  closed  and 
the  question  decided  by  a  majority  vote,  viva  voce,  beginning 
with  the  junior  in  rank.     (A.  W.  31.) 


21358°— 20 6 

81 


^[  89a  CHAPTER  vii. 

(4)  The  phrase  "objection  to  the  admissibility  of  evidence 
offered  during  the  trial,"  as  used  in  A.  W.  31  and  in  this  para- 
graph of  this  Manual,  will  not  be  construed  to  include  any  ques- 
tions as  to — 

(a)  The  order  of  the  introduction  of  witnesses  or  other 

evidence  (including  calling  of  witnesses  on  behalf 
of  the  court). 

(b)  Recalling  witnesses  for  further  examination. 

(c)  Whether  expert  witnesses  shall  be  admitted  or  called 

upon  any  question. 

(d)  Whether  the  court  shall  view  the  premises  where  an 

offense  is  alleged  to  have  been  committed. 

(e)  As  to  the  competency  of  witnesses;  as  for  instance,  of 

children,  or  witnesses  alleged  to  be  mentally  in- 
competent, and  the  like. 

(f )  As  to  insanity  of  the  accused. 

(g)  Whether  the  existence  of  mental  disease  or  mental 

derangement  on  the  part  of  the  accused  has  be- 
come an  issue  in  the  trial, 
(h)  Whether  the  accused  shall  be  required  to  submit  to 

physical  examination. 

(i)  Whether  any  argument  or  statement  of  counsel  for 
the  accused,  or  of  the  trial  judge  advocate,  is  im- 
proper, 
(j)  Any  ruling  in  a  case  involving  military  strategy  or 

tactics  or  correct  military  action. 

Upon  all  these  questions  arising  at  the  trial,  if  any  member 
object  to  any  ruling  of  the  law  member,  the  court  will  be  cleared 
and  closed  and  the  question  decided  by  a  majority  vote  of  the 
members,  viva  voce,  beginning  with  the  junior  in  rank.  (A. 
W.  31.) 

(5)  The  phrase   "interlocutory  questions,"   as   used  in  the 
thirty-first  article  of  war  and  in  this  paragraph,  will  be  deemed 
to  include  all  questions  of  any  kind  arising  at  any  time  during 
the  trial  or  proceedings  while  the  court  is  convened  in  open  or 
closed  session,  except  the  action  of  the  court  on  challenges,  on 
the  findings,  and  on  the  sentence.     (A.  W.  31.) 

(6)  In  addition,  the  law  member  has  the  duties  and  privileges 
of  other  members  of  the  court.    He  has  an  equal  vote  with  other 


82 


COURTS-MARTIAL ORGANIZATION.  ^f    90 

members  in  deciding  all  questions  submitted  to  a  vote  or  ballot 
of  the  court,  including  challenges,  findings,  sentence,  acquittal, 
and  any  interlocutory  questions  submitted  to  a  vote  of  the  court 
pursuant  to  the  objection  of  any  member  to  a  ruling  of  the  law 
member  under  A.  W.  31. 

(7)  The  law  member  of  a  general  court-martial,  when  pres- 
ent, will  (instead  of  the  president)  make  the  explanation  to  the 
accused  of  the  effect  of  a  plea  of  guilty  required  by  paragraph 
154  (d),  infra,  and  will  advise  the  accused  of  his  right  to  tes- 
tify or  make  a  statement  as  required  by  paragraph  215,  infra, 
and,  in  a  proper  case,  advise  the  accused  of  his  right  to  plead  the 
statute  of  limitations,  as  required  by  paragraph  149  (h),  infra. 

He  may,  like  any  other  member  of  the  court,  put  questions  to 
the  witnesses  which  appear  necessary  or  desirable  to  elucidate 
the  truth.  (See  as  to  questions  by  members  of  the  court,  par. 
253a,  infra.) 

NOTE  1. — Whenever  upon  the  objection  of  a  member  to  a  ruling  of 
the  law  member  the  court  is  cleared  and  closed  and  proceeds  to  vote 
np  on  a  question  under  tlie  provisions  of  A.  W.  31,  the  members,  in 
voting  upon  the  question,  will  bear  in  mind  that  while  the  court  as  a 
whole  are  responsible  for  the  legality  of  their  decisions,  they  should 
ordinarily  be  guided  j,y  the  opinion  of  the  law  member  upon  any 
point  of  law  or  procedure,  and  should  not  overrule  it  except  for  very 
weighty  reasons,  nor  without  considering  the  grave  consequences 
which  may  result  from  a  disregard  of  his  advice  on  any  legal  point. 
The  court  in  sustaining  the  opinion  of  the  law  member  on  any  ques- 
tion may  enter  in  the  record  that  they  have  so  decided  in  consequence 
of  that  opinion. 

90.  Method  of  VOTING. — (a)  On  voting  upon  any  interlocu- 
tory question  other  than  challenges  arising  during  tha  proceed- 
ings the  members  of  the  court  shall  vote,  viva  voce,  beginning 
with  the  junior  in  rank,  and  the  question  shall  be  decided  by 
majority  vote;  a  tie  vote  on  any  objection  or  motion  is  a  vote 
in  the  negative.  The  objection  or  motion  is  not  sustained, 
(b)  Voting  by  members  of  a  general  or  special  court-martial 
upon  questions  of  challenge,  on  the  findings,  and  on  the  sentence, 
shall  be  by  secret  written  ballot.  (A.  W.  31.)  The  junior  mem- 
ber of  the  court  shall  in  each  case  count  the  votes,  which  count 
shall  be  checked  by  the  president,  who  will  forthwith  announce 
the  result  of  the  ballot  to  the  members  of  the  court.  A  tie  vote 
on  a  challenge  is  a  vote  in  the  negative;  the  challenge  is 


^f  90a  CHAPTER  vii. 

not  sustained.  When  the  offense  charged  includes  a  minor 
offense,  voting  shall  first  be  had  upon  the  major  offense.  In 
all  deliberations,  including  those  on  challenges,  findings,  sen- 
tence, acquittal,  and  adjournments,  the  law  secures  the  abso- 
lute equality  of  the  members,  neither  the  president  nor  the 
law  member  having  any  greater  rights  in  such  matters  than 
any  other  member  (although,  as  already  stated  [see  par.  8Sa, 
supra],  the  other  members  should  not  disregard  the  opinion  of 
the  law  member  of  a  general  court-martial  on  a  legal  question 
arising  in  the  trial,  except  for  very  weighty  reasons). 

90a.  Number  of  Votes  Required — Death  Sentence — When  Law- 
ful.— No  person  shall,  by  general  court-martial,  be  convicted  of 
an  offense  for  which  the  death  penalty  is  made  mandatory  by 
law,  nor  sentenced  to  suffer  death,  except  by  the  concurrence  of 
all  the  members  of  said  court-martial  present  at  the  time  the 
vote  is  taken,  and  for  an  offense  expressly  made  punishable  by 
death  by  the  articles  of  war.  No  person  shall  be  sentenced  to 
life  imprisonment,  nor  to  confinement  for  more  than  10  years, 
except  by  the  concurrence  of  three-fourths  of  all  of  the  members 
of  the  court  present  at  the  time  the  vote  is  taken.  All  other 
convictions  and  sentences,  whether  by  general  or  special  court- 
martial,  may  be  determined  by  a  two-thirds  vote  of  those  mem- 
bers of  the  court  present  at  the  time  the  vote  is  taken.  All 
other  questions  shall  be  determined  by  a  majority  vote. 

Refusal  to  vote  on  any  question  arising  during  the  pro- 
ceedings constitutes  a  neglect  to  the  prejudice  of  good  order 
and  military  discipline  punishable  under  A.  W.  96.  For 
voting  on  findings  and  sentence,  see  Chapter  XII,  Section  II. 

91.  CLOSED  SESSIONS. —  (a)  Members  take  an  oath  not  to 
disclose  or  discover  the  vote  or  opinion  of  any  particular 
member  of  the  court-martial  upon  a  challenge  or  upon  the 
findings  or  sentence.  (See  A.  W.  19.)  In  order  to  avoid 
disclosing  or  discovering  such  vote  or  opinion  the  court  is 
closed  while  voting  upon  such  questions.  When  the  court 
is  closed  all  persons  (including  the  trial  judge  advocate) 
withdraw.  In  important  cases,  where  delay  would  ensue  due 
to  the  number  of  spectators  present,  the  court  itself  may 
withdraw  to  another  room  prepared  for  the  purpose  for 
deliberating  in  closed  session. 


84 


COURTS-MARTIAL. — ORGANIZATION.  If    92 

It  is  not  necessary,  however,  for  the  court  to  go  into  closed 
session  upon  a  challenge  where  it  is  manifest  that  the  action 
thereon  will  be  unanimous.  Thus,  if  the  accused  objects  to  a 
member  because  he  preferred  the  charges  and  is  the  accuser 
and  the  member  admits  the  fact,  or  upon  a  peremptory  chal- 
lenge, he  may  be  excused  without  going  into  closed  session. 
Care  will  be  taken  in  such  cases  that  no  votes  are  taken  in 
open  session,  and  if  any  member  believes  the  matter  should 
be  passed  upon  in  closed  session,  it  is  proper  for  him  to  move 
that  the  court  be  closed,  whereupon  the  president  will  an- 
nounce that  the  court  will  be  cleared. 

(b)  All  questions  arising  during  the  trial,  except  upon  ques- 
tions of  challenge,  on  the  findings,  and  on  the  sentence,  will  be 
decided  by  the  ruling  of  the  president  or  the  law  member,  as  the 
case  may  be,  in  open  court,  in  accordance  with  the  provisions 
of  A.  W.  31,  without  closing  the  court,  subject,  however,  to  the 
right  of  any  member  to  object  to  the  ruling  (except  upon  those 
questions  of  admissibility  of  evidence  upon  which  the  ruling  of 
the  law  member  is  made  final  by  the  thirty-first  article  of  war), 
upon  which  objection  the  court  will  be  cleared  and  closed  and 
the  question  decided  by  a  majority  vote,  viva  voce,  begi?ming 
with  the  junior  in  rank.  (See  A.  W.  31  and  pars.  89  and  89a, 
supra.) 

92.  SITTING  WITH  CLOSED  DOORW. — A  court-martial  is  au- 
thorized, in  its  discretion,  to  sit  with  doors  closed  to  the 
public.    Except,  however,  when  temporarily  closed  for  de- 
liberation, courts-martial  in  this  country  are  almost  invari- 
ably open  to  the  public  during  a  trial.    But  in  a  particular 
case,  where  the  offenses  charged  were  of  a  scandalous  nature, 
it  was  recommended  that  the  court  be  directed  to  sit  with 
doors  closed  to  the  public.     (Digest,  p.  516,  IX,  C.) 

93.  CHANGE  IN  MEMBERSHIP. — Although  it  is  undesirable 
to  change  the  membership  of  a  court  during  a  trial,  it  is 
within  the  discretion  of  the  appointing  officer  in  a  proper 
case  to  relisve  members  or  appoint  new  members,  including 
the  law  member  of  a  general  court-martial.     The  promotion  of 
a  member  during  the  trial  of  a  case  does  not  affect  his  com- 
petency  as   a   member.    He   should    sit   according  to   his 
changed  rank.     The  rule  is  that  no  member  who  has  been 


85 


*[f    94  CHAPTER  VII. 

absent  during  the  taking  of  evidence  shall  thereafter  take 
part  in  the  trial ;  but  the  nonobservance  of  this  rule  (particu- 
larly as  regards  the  law  member  of  a  general  court)  shall  not 
be  construed  as  invalidating  the  proceedings  of  courts- 
martial  if  no  objection  is  made  and  the  court  permits  the 
member  to  sit.  The  rule,  however,  should  be  complied  with 
when  practicable.  Especially  should  a  member,  other  than 
the  law  member,  who  has  been  absent  during  an  important 
part  of  the  proceedings  not  be  permitted  to  resume  his  seat. 
When  a  member  who  has  been  absent  is  permitted  to  resume 
his  seat,  or  a  new  member  is  added  after  the  trial  of  the 
case  has  begun,  all  proceedings  and  evidence  during  his  ab- 
sence should  be  read  over  to  him  in  open  court  before  the 
case  proceeds  further,  and  the  record  should  show  this  fact; 
but  in  proceedings  in  revision  the  presence  of  any  member 
who  did  not  vote  on  the  findings  and  sentence  will  invalidate 
the  proceedings  in  revision. 

SECTION  II. 
THE  TRIAL  JUDGE  ADVOCATE. 

94.  SELECTION. — The  prompt,  speedy,  and  thorough  trial 
of  a  court-martial  case  is  largely  dependent  upon  the  trial 
judge  advocate.    He  will,  accordingly,  be  carefully  selected. 
Where  it  can  be  avoided,  no  officer  who  has  not  had  experi- 
ence as  a  trial  judge  advocate  will  be  detailed  as  trial  judge 
advocate  of  a  general  court-martial  unless  he  has  had  experi- 
ence as  a  member  or  as  defense  counsel  of  a  general  court- 
martial,  or  as  an  assistant  trial  judge  advocate  of  a  court- 
martial,  and  is  otherwise  qualified  by  character  and  attain- 
ments for  this  duty. 

95.  GENERAL  DUTIES. — The  trial  judge  advocate  of  a  gen- 
eral or  special  court-martial  shall  prosecute  in  the  name  of 
the  United  States,  and  shall,  under  the  direction  of  the  court, 
prepare  the  record  of  its  proceedings.     (A.  W.  17.)     Before 
the  court  assembles  the  trial  judge  advocate  will  obtain  a 
suitable  room  for  the  court,  see  that  it  is  in  order,  procure 
the  requisite  stationery,  summon  necessary  witnesses,  make  a 
preliminary  examination  of  the  latter,  and,  as  far  as  pos- 
sible, systematize  his  plans  for  conducting  the  case.    Dur- 


COUKTS-MAKTIAL, — ORGANIZATION.  ^    96 

ing  the  trial  he  executes  all  orders  of  the  court;  reads 
the  appointing  order  and  any  modifying  orders  to  the 
accused;  swears  the  members  of  the  court,  the  reporter, 
interpreter,  and  all  witnesses;  arraigns  the  accused;  exam- 
ines witnesses;  keeps  or  superintends,  under  the  direction  of 
the  court,  the  keeping  of  a  complete  and  accurate  record  of 
the  proceedings ;  and  affixes  his  signature  to  each  day's  pro- 
ceedings. Whenever  the  court  adjourns  to  meet  at  the  call 
of  the  president,  the  trial  judge  advocate  will  notify  the 
members,  as  well  as  the  defense  counsel,  the  accused,  and  coun- 
sel for  the  accused,  of  the  time  designated  by  the  president 
for  reassembling.  In  conjunction  with  the  president  of  the 
court,  he  authenticates  the  record  by  his  signature,  and,  at 
the  end  of  the  trial,  transmits  the  same  to  the  reviewing 
authority.  In  case  the  record  can  not  be  authenticated  by 
the  president  and  trial  judge  advocate  by  reason  of  the  death, 
disability,  or  absence  of  either  or  both  of  them,  it  shall  be 
signed  by  a  member  in  lieu  of  the  president  and  by  an  assist- 
ant trial  judge  advocate,  if  there  be  one,  in  lieu  of  the  trial 
judge  advocate;  otherwise  by  another  member  of  the  court. 
(A.  W.  33.) 

96.  DUTY  TOWARD  ACCUSED. — It  is  not  the  office  of  the  trial 
judge  advocate,  under  the  articles  of  war  as  amended  by  the  code 
of  1920,  to  offer  any  advice  to  the  accused;  that  is  the  duty  of 
the  defense  counsel  of  the  court  and  of  the  individual  counsel, 
if  any,  of  the  accused.     If,  at  any  time  prior  to  the  trial  or 
arraignment,  the  trial  judge  advocate  desires  to  ask  how  the 
accused  intends  to  plead,  such  question  will  be  asked  of  the 
defense  counsel  or  of  other  counsel,  if  any,  of  the  accused.    The 
trial  judge  advocate  will  in  no  case  try  to  induce  the  accused 
to  plead  guilty,  or  leave  him  to  infer  that  if  he  does  so  his 
punishment  will  be  lighter.     (Winthrop,  p.  293.)    When  the 
accused  determines  to  plead  guilty  the  trial  judge  advocate 
will  formally  advise  him  in  open  court  of  his  right  to  intro- 
duce evidence  in  explanation  or  extenuation  of  his  offense 
and  should  assist  him  and  the  defense  counsel  and  any  other 
counsel  for  the  accused  in  securing  it. 

97.  EXAMINATION  OF  CHARGES. — The  trial  judge  advocate 
will  note  and  report  to  the  convening  authority  any  irregu- 


^[98  CHAPTER  VII. 

larity  in  the  order  convening  the  court  or  in  the  charges  or 
other  accompanying  papers,  either  in  substance  or  form.  He 
may  ordinarily  correct  obvious  mistakes  of  form,  or  slight 
errors  in  names,  dates,  amounts,  etc.,  but  he  will  not,  without 
the  authority  of  the  convening  officer,  make  substantial 
amendments  in  the  allegations,  or  reject  or  withdraw  a  charge 
or  specification  or  substitute  a  new  and  distinct  charge  for 
one  transmitted  to  him  for  trial  by  the  proper  superior  (Di- 
gest, p.  496,  IV,  B,  1),  except  as  provided,  infra,  in  paragraph 
158  and  the  various  subparagraphs  thereunder.  It  is  the  duty 
of  the  president  as  well  as  the  trial  judge  advocate  and  the 
defense  counsel  of  every  court-martial  to  examine  carefully 
the  charges  and  the  order  of  reference  for  trial,  when  referred 
for  trial,  in  order  that  an  accused  may  not  be  brought  to 
trial  before  the  wrong  court. 

NOTE. — Any  corrections  in  the  charges  made  at  any  time,  either 
by  the  trial  judge  advocate  or  by  the  staff  judge  advocate  will,  each, 
be  carefully  initialed  by  the  officer  making  them. 

98.  WHOLE  TRUTH  TO  BE  PRESENTED. — Throughout  the 
trial  the  trial  judge  advocate  should  do  his  utmost  to  present 
the  whole  truth  of  the  matter  in  question.    He  should  oppose 
every  attempt  to  suppress  facts  or  to  distort  them,  to  the 
end  that  the  evidence  may  so  exhibit  the  case  that  the  court 
may  render  impartial  justice. 

99.  LEGAL  ADVISER  OF  THE  COURT. — While  the  court  is  in 
open  session  the  trial  judge  advocate  should  respectfully  call 
the  attention  of  the  court  to  any  apparent  illegalities  in  its 
action,  and  to  any  apparent  irregularities  in  its  proceedings. 
He  should  act  as  legal  adviser  of  the  court  so  far  only  as  to 
give  his  opinion  upon  any  point  of  law  arising  during  the 
trial,  when  it  is  asked  for  by  the  court,  in  open  court,  but  not 
otherwise.     (See,  however,  par.  197.)     In  case  the  accused 
desires  to  plead  guilty  the  trial  judge  advocate,  as  well  as  the 
defense  counsel,  will,  whenever  necessary,  invite  the  attention 
of  the  president  of  the  court  to  the  fact  that  the  effect  of 
such  plea  must  be  explained  to  him.     (See  Chap.  IX,  Sec. 
II.  "  Pleas  to  the  general  issue.") 

100.  FREEDOM  IN  CONDUCTING  CASE. — The  trial  judge  ad- 
vocate should  be  left  free  by  the  court  to  introduce  his  evi- 


COURTS-MARTIAL — ORGANIZATION.  ^f    101 

dence  in  such  order  as  he  sees  fit,  and  in  general  to  bring 
cases  to  trial  in  such  order  as  he  deems  expedient.  (Win- 
throp,  pp.  281-284.)  But,  while  it  is  not  the  province  of  the 
court  to  direct  or  control  the  trial  judge  advocate  in  his  prose- 
cution of  the  case,  it  is  responsible  for  the  thorough  investi- 
gation of  the  case,  and  need  not  content  itself  with  the  evi- 
dence brought  out  by  the  prosecution  and  defense.  It  is 
proper  for  the  court  as  a  body  or  for  any  member  to  ask 
questions  of  a  witness  if  it  is  believed  the  examination  al- 
ready submitted  has  failed  fully  to  develop  the  case.  Usually 
such  questions  are  not  asked  until  after  the  prosecution  and 
defense  have  fully  completed  their  examination  of  the  wit- 
ness. The  court  may  direct  that  the  trial  judge  advocate  recall 
a  witness,  or  to  secure  the  attendance  of  a  particular  wit- 
ness, or  that  he  introduce  evidence  on  a  particular  point.  It 
is  the  duty  of  the  court  to  take  such  action  if  it  believes  that 
thereby  the  facts  in  the  case  will  be  more  clearly  presented. 

101.  CLOSED   SESSIONS. — Whenever   a   general    or   special 
court-martial  shall  sit  in  closed  session,  the  trial  judge  advo- 
cate and  the  assistant  trial  judge  advocate,  as  well  as  the 
defense  counsel  and  the   assistant  defense   counsel,   and   any 
other  counsel  for  the  accused,  shall  withdraw ;  and  when  their 
assistance  in  referring  to  the  recorded  evidence  is  required, 
it  shall  be  obtained  in  open  court,  and  in  the  presence  of  the 
accused  and  of  both  the  trial  judge  advocate  and  the  defense 
counsel  as  well  as  of  the  accused's  individual  counsel  if  there 
be  any.     (A.  W.  30.)     If  through  mistake  or  inadvertence 
the  trial  judge  advocate  should  be  present  during  all  or  a 
part  of  the  closed  session  of  a  court,  such  irregularity  is, 
subject  to  the  provisions  of  A.  W.  37,  the  ground  for  a 
disapproval  of  the  proceedings  by  the  reviewing  authority, 
but  it  does  not  deprive  the  court  of  jurisdiction,  and  courts 
of  the  United  States  do  not  interfere  in  such  a  case  to 
release  a  prisoner  by  a  writ  of  habeas  corpus.     (Ex  parte 
Tucker,  212  Fed.  Rep.,  569 ;  see  also  A.  W.  37.) 

102.  ACCUSER  OR  PROSECUTOR. — The  trial  judge  advocate  is 
not  challengeable ;  but  in  case  of  personal  interest  in  the 
trial  or  of  personal  hostility  toward  the  accused  he  should 
apply  to  the  convening  authority  to  be  relieved. 


If    103  CHAPTER  VII. 

103.  EXPEDITING  TRIALS. — When  charges  have  been  ordered 
to  trial  by  a  general  or  special  court-martial  they  are  re- 
ferred to  the  trial  judge  advocate  of  the  court.    It  is  his  duty 
to  bring  them  to  trial  promptly.     In  most  cases  tried  by 
court-martial  the  facts  are  few  and  simple,  and  the  witnesses 
are  officers  or  soldiers  stationed  at  the  post  where  the  trial 
is  had.     Usually  the  members  of  the  court,  the  trial  judge 
advocate,  defense  counsel,  and  the  accused  and  his  individual 
counsel,  if  any,  are  stationed  at  the  same  post.    In  such  cases 
the  trial  should  take  place  promptly.     If  the  other  official 
duties  of  the  trial  judge  advocate,  the  defense  counsel,  and 
other  counsel  do  not  leave  time  to  prepare  cases  properly  and 
to  bring  them  to  trial  promptly,  the  president  will  advise  the 
commanding  officer,  with  a  view  to  their  being  relieved  from 
other  duties. 

103a.  Penalty  for  Delay. — Any  officer  responsible  for  unneces- 
sary delay  in  investigating  or  carrying  a  case  to  a  final  conclu- 
sion shall  be  punished  as  a  court-martial  may  direct.  (A.  W.  70.) 

104.  WEEKLY  REPORTS. — On  Saturday  of  each  week  each 
trial  judge  advocate  of  a  general  court-martial  will  report, 
through  the  president  of  the  court  and  the  commanding 
officer,  to  the  appointing  authority,  a  list  of  charges  on  hand, 
showing  the  date  of  receipt  of  each ;  and  if  any  case  has  been 
in  the  hands  of  the  trial  judge  advocate  for  more  than  two 
weeks  and  the  record  of  trial  has  not  been  forwarded  to  the 
convening  authority,  the  report  will  include  a  statement  of 
the  reasons  for  the  delay.    No  record  need  be  made  of  this 
report  by  the  president  of  the  court  or  the  commanding 
officer. 

105.  DETAIL  OF  ORDERLY. — The  commanding  officer  will  de- 
tail, when  necessary,  suitable  soldiers  as  clerks  or  orderlies 
to  assist  the  trial  judge  advocate  of  a  general  or  special 
court-martial  or  military  commission,  or  the  recorder  of  a 
court  of  inquiry. 

SECTION  III. 

ASSISTANT  TRIAL  JUDGE  ADVOCATE. 

106.  APPOINTMENT. — The  authority  appointing  a  general 
court-martial  shall  appoint  one  or  more  assistant  trial  judge 


80 


COURTS-MARTIAL — ORGANIZATION.  ^f    107 

advocates  when  necessary.  (A.  W.  11.)  An  assistant  trial 
judge  advocate  of  a  general  court-martial  shall  be  competent 
to  perform  any  duty  devolved  by  law,  regulation,  or  custom 
of  the  service  upon  the  trial  judge  advocate  of  the  court. 
(A.  W.  116.) 

107.  DUTIES. — An  assistant  trial  judge  advocate  will  per- 
form such  duties  in  connection  with  the  trial  as  the  trial 
judge  advocate  may  designate.  Ordinarily  he  will  be  ex- 
pected to  assist  the  trial  judge  advocate  in  the  preparation  of 
cases  for  trial,  in  interviewing  witnesses,  looking  up  law  and 
authorities,  preparing  a  trial  brief  or  memorandum  for  the  use 
of  the  trial  judge  advocate  at  the  trial,  and  trying  such  less 
important  cases  as  the  trial  judge  advocate  may,  with  the  con- 
sent of  the  court,  direct,  or  taking  charge  of  the  investigation 
before  trial  and  proof  during  the  trial  of  any  particular  phase 
or  phases  of  the  charges  in  any  case,  and  also  to  relieve  the 
trial  judge  advocate  of  minor  details,  such  as  arranging  for 
a  place  of  meeting  of  the  court,  stationery,  messenger  serv- 
ice, stenographers  and  interpreters,  subpoenaing  witnesses, 
and  notifying  the  court  and  the  defense  counsel  and  ether 
counsel  for  the  accused  of  the  place  and  hour  of  meeting. 
During  the  trial  he  will  be  expected  to  see  that  witnesses 
are  on  hand  when  needed,  that  all  details  of  procedure  are 
observed,  and  the  record  accurately  kept.  As  provided  in 
A.  W.  33,  he  may,  in  certain  cases,  authenticate  the  record  of 
trial  in  lieu  of  the  trial  judge  advocate;  and  in  cases  tried  by 
him  where  the  trial  judge  advocate  was  not  present  he  will 
authenticate  the  record  in  lieu  of  the  trial  judge  advocate. 
While  a  trial  judge  advocate  and  an  assistant  trial  judge 
advocate  will  ordinarily  be  present  during  trial,  if  their 
duties  require  the  presence  of  either  of  them  elsewhere,  he 
may  be  excused  by  the  court,  but  the  fact  of  his  withdrawal 
or  absence,  the  reason  therefor,  and  his  return  to  the  court 
will  be  noted  in  the  record.  (See  form  for  record  of  gen- 
eral court-martial,  Appendix  10.) 

Wherever  in  this  Manual  the  trial  judge  advocate  of  a 
general  court-martial  is  mentioned,  the  term  will  be  under- 
stood to  include  assistant  trial  judge  advocates,  if  any,  unless 
the  context  shows  clearly  that  a  different  sense  is  intended. 


91 


^f  107a  CHAPTER  vii. 

SECTION  IIIA. 
THE  DEFENSE  COUNSEL. 

107a,  Selection. — The  thoroughness  and  fairness  of  trials,  as 
well  as  the  proper  protection  and  rights  of  the  accused  before 
and  at  the  trial,  and  promptitude  in  the  preparation  and  in  the 
trial,  depend  very  largely  upon  the  defense  counsel  of  the  court. 
He  will,  accordingly,  be  carefully  selected.  Where  it  can  be 
avoided,  no  officer  below  the  rank  of  captain  will  be  detailed 
as  defense  counsel  of  a  general  court-martial. 

Officers  so  detailed  should  have  the  qualifications  prescribed 
in  paragraph  94  for  trial  judge  advocates,  and  should  be 
selected  with  the  same  care. 

107b.  General  Duties. — The  defense  counsel  of  a  general  or 
special  court-martial  will  assist  the  accused  in  the  preparation 
for  trial  and  at  the  trial,  and  will  examine  the  record  of  the 
proceedings  of  the  court  each  day  before  it  is  authenticated. 
He  will,  as  counsel  for  the  accused,  perform  such  duties  as 
usually  devolve  upon  the  counsel  for  a  defendant  before  the  civil 
courts  in  criminal  cases.  He  should  guard  the  interests  of  the 
accused  by  all  honorable  and  legitimate  means  known  to  the 
law,  but  should  not  obstruct  the  proceedings  with  frivolous  and 
manifestly  useless  objections  or  discussions.  Should  the  accused 
have  counsel  of  his  own  selection,  the  defense  counsel  of  the 
court  will,  if  the  accused  so  desires,  act  as  associate  counsel  for 
the  accused  (A.  W.  17),  or  will,  if  the  accused  so  desires,  turn 
over  the  entire  defense  at  the  trial  to  counsel  of  the  accused's 
own  selection,  but  in  such  case  the  defense  counsel  will  never- 
theless remain  present  in  court  and  will  make  any  suggestions 
to  the  accused's  counsel,  for  the  benefit  of  the  defense,  which 
he  may  think  proper,  and  will  remain  ready  to  assist  the  defense 
at  any  time  if  requested;  except  that,  if  the  accused  (whether 
or  not  he  has  individual  counsel)  specially  requests  that  the 
defense  counsel  or  any  particular  defense  counsel  take  no  part  in 
the  case,  the  court  will  excuse  him  from  attendance  at  the  trial. 

107c.  Whole  Truth  to  be  Presented. — Throughout  the  trial 
the  defense  counsel  of  the  court  should  do  his  utmost  to  present 


COURTS-MARTIAL — ORGANIZATION.  ^f    107d 

the  whole  truth  of  the  matter  in  question,  and  at  the  same  time 
to  place  the  facts  before  the  court  in  the  most  favorable  light 
for  the  accused.  He,  equally  with  the  trial  judge  advocate, 
should  oppose  every  attempt  to  distort  facts,  to  the  end  that 
the  defense  may  so  exhibit  the  case  that  the  court  may  render 
impartial  justice. 

107d.  Legal  Adviser  to  the  Court. — The  defense  counsel  of  the 
court,  equally  with  the  trial  judge  advocate,  is  a  legal  adviser 
to  the  court.  While  the  court  is  in  open  session  the  defense 
counsel  should  respectfully  call  the  attention  of  the  court  to  any 
apparent  illegality  in  its  action,  and  to  any  apparent  irregularity 
in  its  proceedings.  He  should,  equally  with  the  trial  judge  ad- 
vocate, act  as  legal  adviser  of  the  court  so  far  as  to  give  his 
opinion  upon  any  point  of  law  arising  during  the  trial,  when 
it  is  asked  for  by  the  court.  As  a  general  rule,  the  court  will 
not  ask  for  the  opinion  of  the  trial  judge  advocate  upon  any 
question  arising  during  the  trial  without  also  asking  for  that 
of  the  defense  counsel,  and  vice  versa.  When  the  legal  advice 
or  assistance  of  the  defense  counsel  is  required  it  will  be  obtained 
in  open  court. 

107e.  Freedom  in  Conducting  the  Case. — The  defense  counsel 
and  other  counsel  for  the  accused  should,  equally  with  the  trial 
judge  advocate,  be  left  free  by  the  court  to  introduce  his  evi- 
dence in  such  order  as  he  sees  fit.  But  while  it  is  not  the  prov- 
ince of  the  court  to  direct  or  control  the  defense  counsel,  or 
other  counsel  for  the  accused,  in  his  presentation  of  the  defense, 
the  court  is  responsible  for  the  thorough  investigation  of  the 
case,  and  need  not  content  itself  with  the  evidence  brought  out 
by  the  prosecution  and  defense.  (See  par.  100,  supra.) 

107f .  Personal  Interest — Belief  from  Duty. — The  defense  coun- 
sel of  the  court  is  not  challengeable,  but  in  case  of  personal  in- 
terest in  the  trial  or  of  personal  hostility  toward  the  accused  or 
toward  the  accuser  he  should  apply  to  the  convening  authority 
to  be  relieved. 

107g.  Detail  of  Orderly. — The  commanding  officer  will  detail, 
when  necessary,  suitable  soldiers  as  clerks  or  orderlies  to  assist 
the  defense  counsel  of  a  general  or  special  court-martial  or  mili- 
tary commission,  in  like  manner  as  for  the  trial  judge  advocate 
thereof. 


If    107h  CHAPTER  VII. 

SECTION  IIIB. 
ASSISTANT  DEFENSE  COUNSEL. 

107h.  Appointment. — The  authority  appointing  a  general 
court-martial  shall  appoint  one  or  more  assistant  defense  counsel 
when  necessary.  (A.  W.  11.)  In  general,  the  same  number  of 
assistant  defense  counsel  should  be  appointed  for  a  general 
court-martial  as  assistant  trial  judge  advocates.  An  assistant 
defense  counsel  of  a  general  court-martial  shall  be  competent  to 
perform  any  duty  devolved  by  law,  regulation,  or  the  custom  of 
the  service  upon  counsel  for  the  accused  (A.  W.  116)  or  upon 
the  defense  counsel  of  the  court. 

107i.  An  assistant  defense  counsel  will  perform  such  duties  in 
connection  with  the  trial  as  the  defense  counsel  of  the  court  may 
designate.  Ordinarily  he  will  be  expected  to  relieve  the  defense 
counsel  of  the  court  and  the  counsel  for  the  accused  of  minor  de- 
tails, and  in  conjunction  with  the  assistant  trial  judge  advocate  to 
see  that  witnesses  are  on  hand  when  needed,  that  all  details  of 
procedure  are  observed,  and  that  the  record  is  properly  kept. 
He  may  also  be  entrusted  by  the  defense  counsel  of  the  court 
with  advising  the  accused  before  trial  and  with  the  preparation 
of  the  case  before  trial  and  proof  during  trial  of  any  special 
phase  of  the  defense.  While  the  defense  counsel  of  the  court 
and  the  assistant  defense  counsel  will  ordinarily  both  be  present 
during  trial,  if  their  duties  require  the  presence  of  either  of  them 
elsewhere  he  may  be  excused  by  the  court,  but  the  fact  of  his 
withdrawal  or  absence,  the  reason  therefor,  and  his  return  to  the 
court  will  be  noted  in  the  record.  (See  form  for  record  of  gen- 
eral court-martial,  Appendix  10.) 

Wherever  in  this  Manual  the  defense  counsel  of  a  general 
court-martial  is  mentioned,  the  term  will  be  understood  to  in- 
clude assistant  defense  counsel  of  the  court,  if  any,  unless  the 
context  shows  clearly  that  a  different  sense  is  intended. 

SECTION  IV. 
INDIVIDUAL  COUNSEL  FOR  THE  ACCUSED. 

108.  APPOINTMENT. — In  addition  to  the  services  of  the  de- 
fense counsel  of  the  court,  the  accused  has  the  right  to  be 

04 


COURTS-MARTIAL, — ORGANIZATION.  ^    109 

represented  before  a  general  or  special  court-martial  by 
civilian  counsel  of  his  own  selection,  or  by  military  counsel 
of  his  own  selection  if  such  counsel  be  reasonably  available. 
Such  military  counsel  will,  if  requested  by  the  accused,  be 
detailed  as  soon  as  practicable  after  the  charges  are  referred 
for  'trial  (or,  in  case  the  accused  is  placed  under  arrest  or  in 
confinement,  then  as  soon  as  practicable  after  such  arrest  and 
confinement).  Civilian  counsel  will  not  be  provided  at  the 
expense  of  the  Government.  Should  the  accused  have  counsel 
of  his  own  selection,  either  military  or  civilian,  the  defense 
counsel  and  assistant  defense  counsel,  if  any,  of  the  court,  shall, 
if  the  accused  so  desires,  or  unless  the  accused  objects,  act  as  his 
associate  counsel.  (A.  W.  17;  and  see  par.  107b,  supra.)  When- 
ever the  accused  introduces  individual  counsel  at  the  trial  he 
will  be  asked  whether  he  is  willing  to  have  the  defense  counsel 
act  as  his  associate  counsel.  Should  the  accused  request  the 
appointment  as  his  individual  counsel  of  an  officer  stationed 
at  the  station  where  the  court  sits,  and  such  officer  be  not  a 
member  nor  trial  judge  advocate  nor  assistant  trial  judge 
advocate  of  the  court,  the  commanding  officer  will  appoint 
such  officer  as  such  individual  counsel  if  he  is  reasonably 
available.  Should  the  commanding  officer  decide  that  the 
officer  so  desired  by  the  accused  is  not  reasonably  available, 
the  accused  may  appeal  to  the  officer  appointing  the  court, 
whose  decision  shall  be  final.  If  the  counsel  desired  by  the 
accused  is  not  under  the  control  of  the  commanding  officer 
where  the  trial  is  held,  timely  application  for  such  individual 
counsel  will  be  submitted  by  the  accused  in  writing  to  the 
appointing  authority,  whose  decision  as  to  whether  the  offi- 
cer desired  is  "  reasonably  available  "  is  final. 

109.  DUTY  or  OFFICER  AS  Individual  COUNSEL  for  the  Ac- 
cused.— An  officer  acting  as  individual  counsel  for  the  accused 
before  a  general  or  special  court-martial  should  perform 
such  duties  as  usually  devolve  upon  the  counsel  for  a  de- 
fendant before  civil  courts  in  criminal  cases.  He  should 
guard  the  interests  of  the  accused  by  all  honorable  and  legiti- 
mate means  known  to  the  law.  He  should  not  obstruct  the 
proceedings  with  frivolous  and  manifestly  useless  objections 
or  discussions.  He  will  ordinarily,  unless  the  accused  per- 


If  109a  CHAPTER  vn. 

sonally  objects  thereto,  avail  himself  of  the  services  of  the 
defense  counsel  of  the  court  and  assistant  defense  counsel,  if 
any,  as  associate  counsel  in  accordance  with  the  provisions  of 
A.  W.  17. 

109a.  Opportunity  to  Prepare  for  Trial. — Ample  opportunity 
will  be  given  to  trial  judge  advocate,  defense  counsel,  and 
individual  counsel  for  accused  properly  to  prepare  the  prose- 
cution and  defense  of  each  case,  respectively,  and  for  that 
purpose  they  will  be  excused  from  any  other  duty  that  may 
interfere  with  such  work. 

110.  RIGHT  TO  INTERVIEW  THE  ACCUSED. — An  accused,  even 
in  close  arrest,  will  be  allowed  to  have  such  interviews  with 
the  defense  counsel  of  the  court  and  with  his  individual  coun- 
sel, military  or  civil,  as  may  be  required  in  order  to  prepare 
his  defense.     The  defense  counsel  and  other  counsel  for  the 
accused  will  also  be  permitted  to  have  interviews  with  any 
other  person  who  may  be  a  witness  for  the  accused  or  for  the 
prosecution,  or  whose  knowledge  of  facts  may  be  useful  to 
the  accused  in  preparing  his  trial. 

111.  WITNESSES,  How  QUESTIONED  DURING  THE  TRIAL. — 
If  the  trial  judge  advocate  personally  prepares  the  record, 
the  defense  counsel  and  other  counsel  for  the  accused  will  be 
required  to  reduce  his  questions  and  arguments  to  writing; 
but  if  the  court  has  a  stenographic  reporter,  counsel  will  be 
allowed  to  question  witnesses  and  address  the  court  orally. 

SECTION  V. 
REPORTER. 

112.  EMPLOYMENT. — Under  such  regulations  as  the  Sec- 
retary of  War  may  from  time  to  time  prescribe,  the  presi- 
dent of  a  court-martial  or  military  commission  or  a  court 
of  inquiry  shall  have  power  to  appoint  a  reporter,  who  shall 
record  the  proceedings  of  and  testimony  taken  before  such 
court  or  commission  and  may  set  down  the  same,  in  the  first 
instance,  in  shorthand.     (A.  W.  115.)     Eeporters  are  author- 
ized for  all  general  courts-martial,  military  commissions,  and 
courts  of  inquiry,  and  for  special  courts-martial  when  the 


COURTS-MARTIAL, — ORGANIZATION.  ^    112a 

appointing  authority  directs  that  the  testimony  be  reduced  to 
writing. 

NOTE. — For  form  of  oath  for  reporter  see  paragraph  135. 

112a.  Duties. — It  is  the  sworn  duty  of  a  stenographic  reporter 
to  take  down  in  his  notes  and  to  transcribe  into  the  record 
everything  that  actually  occurs  in  open  court,  unless  otherwise 
directed  by  the  court  itself.  Neither  the  trial  judge  advocate 
ncr  counsel  for  the  accused  may  direct  the  reporter  to  omit  any- 
thing, either  from  his  notes  or  from  his  transcript  thereof  for 
the  record.  It  is  the  reporter's  duty  to  disregard  any  such 
instructions  from  anyone  except  the  court  itself. 

113.  COMEEK  SATION — DECISIONS. — The  reporter  shall  be 
paid  at  the  following  rates  of  compensation  by  the  Finance 
Department  on  vouchers  certified  to  be  correct  by  the  trial 
judge  advocate  or  recorder: 

(a)  For  each  day  in  attendance  at  court  $5,  and  in  addition 
thereto  50  cents  an  hour  for  time  actually  spent  MI  court  during 
the  trial  or  hearing.     Time  will  be  reckoned  to  the  nearest 
half  of  an  hour. 

(b)  Twenty  cents   for  each   100  words   for  transcribing 
notes  and  making  that  portion  of  the  original  record  which 
is  typewritten;  but  no  allowance  shall  be  made  for  the  first 
carbon  copy  of  that  portion  of  the  record  which  is  type- 
written or  for  original  papers  which  are  appended  as  ex- 
hibits. 

(c)  Fifteen  cents  for  each  100  words  for  copying  papers 
material  to  the  inquiry,  and  2  cents  for  each  100  words  for 
each  carbon  copy  of  the  same,  when  ordered  by  the  court  or 
commission  for  its  use. 

(d)  Two  cents  for  each  100  words  for  the  second  and  each 
additional  carbon  copy  of  the  record  when  authorized  by  the 
convening  authority. 

(e)  Except  for  such  part  of  the  journey  as  may  be  covered 
by  Government  transportation,  mileage  at  the  rate  authorized 
i'or  a  civilian  witness  not  in  Government  employ,  and  $4  a 
day  for  expenses  when  the  trial  judge  advocate  or  recorder 
keeps  him,  at  his  own  expense,  away  from  his  usual  place 
of  employment  for  24  hours  or  more,  on  public  business  re- 
ferred to  the  court  or  commission,  shall  be  allowed  the  re- 

21358°— 20 7 

97 


I]     114  CHAPTER  VII. 

porter   for   himself,   and,   when   ordered   by    the   court   or 
commission,  for  each  necessary  assistant. 

(/)  An  Army  field  clerk,  or  a  field  clerk  Quartermaster 
Corps,  warrant  officer,  or  member  of  the  Army  Nurse  Corps,  is 
not  entitled  to  any  extra  pay  or  other  compensation  for  services 
as  a  stenographic  reporter  for  a  court-martial,  court  of  inquiry, 
military  commission,  or  military  board,  although  performed 
while  on  leave  of  absence  or  any  time  outside  of  regular  duty 
hours.  (Dec.  of  the  Comp.,  Uov.  15,  1920;  A.  D.  No.  5245.) 

NOTE. — The  following  decisions  regal-ding  compensation  of  reporters 
will  be  observed  in  preparing  vouchers: 

(a)  In  determining  the  period  for  which  a  reporter  is  entitled  to 
the  allowance  of  $3  (now  $4)  a  day  for  expenses  wlien  kept  away 
from  his  usual  place  of  employment  time,  should  be  counted  from  the 
date  on  which  he  is  required  to  leave  his  usual  place  of  business  by 
the  terms  of  his  employment  to  the  date  of  his  return  thereto,  pro- 
vided there  be  no  unnecessary  delay  in  the  travel  to  and  from  the 
place  where  the  court  meets.  (Par.  1274,  Manual  Q.  M.  Corps,  1916.) 

(&)  The  fact  that  a  reporter  returns  each  night  to  his  home  does 
not  preclude  the  view  that  he  was  kept  away  from  his  place  of  busi- 
ness for  24  hours.  He  is  not,  however,  entitled  to  mileage  for  such 
journeys  unless  the  sessions  of  the  court  are  held  on  nonconsecutive 
days.  (Op.  J.  A.  G.,  Sept  7,  1910.) 

(c)  A  reporter  serving  two  separate  courts-martial  on  the  same  day 
is  entitled  to  have  his  allowances   (except  -mileage)   computed  sepa- 
rately for  each  court.     (Op.  J.  A.  G.,  Oct  .13,  1910. ) 

(d)  A  -reporter  duly   employed,   but   who,   after   arrival   at   court, 
performs  no  service,  owing  to  adjournment,  is  entitled  to  mileage, 
$5   for   constructive   attendance,   and   also   to   the   additional    $4   if 
kept  away  from  place  of  business  for  24  hours.     (See  Op.  J.  A.  G., 
Feb.  18,  1911;  June  4,  1914.) 

(e)  The  abbreviations  "Q.,"  standing  for  the  word  question,  and 
"A.,"  standing  for  the  word  answer,  and  all  dates,  as  "25th"   and 
"1914,"  will  each  be  counted  as  one  word.     Punctuation  marks  will 
not  be  counted  as  a  word.     It  is  not  necessary  for  the  trial  judge 
advocate  to  count  the  actual  number  of  words  on  every  page  to  jus- 
tify him  in  certifying  the  account  of  the  reporter.     He  may  ascer- 
tain the  total  number  of  words  by  counting  the  words  on  a  sufficient 
number  of  pages  to  enable  him  to  ascertain   a   fair  average  of  the 
number  of  words  on  a  page  and  then  ascertain  the  total  by  multiply- 
ing this  average  by  the  number  of  pages.      (Op.  J.  A.  G.,  Oct.  22, 
1909;  Feb.  8,  1915.) 

114.  DISPOSITION  OF  VOUCHERS. — The  original  voucher  for 
payment  of  the  reporter  will  be  properly  completed  and  cer- 


93 


COURTS-MAETIAIJ — ORGANIZATION.  ^f    115 

tified  by  the  trial  judge  advocate  and  will  be  sent  for  pay- 
ment to  the  nearest  disbursing  finance  officer.  A  carbon  copy 
of  the  voucher  will  be  forwarded  with  the  record  for  the  in- 
formation of  the  appointing  authority. 

NOTE.- — For  form  of  voucher  for  payment  of  reporter,  see  Appen- 
dix 25, 

115.  DETAIL  or  SOLDIER. — A  soldier  may  be  detailed  to 
serve  as  a  stenographic  reporter  for  general  courts-martial, 
courts  of  inquiry,  and  military  commissions,  and  while  so 
serving  shall  receive  extra  pay  at  the  rate  of  not  exceeding 
5  cents  for  each  100  words  taken  i,n  shorthand  and  tran- 
scribed, such  extra  pay  to  be  met  from  the  annual  appropri- 
ation for  expenses  of  courts-martial.     (Act  of  Aug.  24, 1912, 
37  Stat.  575.)     Such  detail  will  be  made  only  when  a  re- 
porter is  authorized  by  paragraph  112,  supra,  or  by  the  ap- 
pointing authority. 

116.  TIME    LIMIT    FOR    COMPLETING    RECORD. — The    trial 
judge  advocate  or  recorder  shall  require  the  reporter  to  fur- 
nish the  typewritten  record  of  the  proceedings  of  each  ses- 
sion of  the  court  or  commission  (together  with  one  carbon 
copy  of  the  same)  not  later  than  24  hours  after  the  adjourn- 
ment of  that  session.     The  complete  record  will  be  finished, 
indexed,  bound,  and  ready  for  authentication  not  later  than 
48  hours  after  the  completion  of  its  action  by  the  court  or 
commission  on  the  merits  of  the  case  or  hearing. 

NOTE. — The  provisions  of  A.  W.  70  should  be  borne  in  mind,  making 
punishable  as  a  court-martial  may  direct  any  unnecessary  delay  in 
carrying  a  case  to  final  conclusion. 

117.  CARBON  COPIES  OF  THE  RECORD. — Whenever  a  record 
of  a  trial  by  court-martial  is  to  be  typewritten  by  a  reporter, 
the  trial  judge   advocate  will   inform   the   accused   of   his 
right  to  demand  a  copy  of  the  record,  and  will  require  of 
him  a  statement  as  to  whether  or  not  he  desires  a  copy.    If 
the  answer  be  in  the  affirmative,  the  trial  judge  advocate  will 
cause  the  reporter  to  prepare  a  carbon  copy;  this  copy  will 
be  turned  over  to  the  accused  personally,  whose  personal  writ- 
ten receipt  therefor  will  be  attached  to  the  record;  unless  the 
accused  declines  to  sign  the  receipt,  in  which  case  an  affidavit  of 
the  delivery  of  such  carbon  copy  to  the  accused  made  by  the 


H    118  CHAPTER  VTI. 

person  delivering  it  to  him,  will  be  attached  to  the  record  of 
trial. 

118.  EXTRA  COMPENSATION  FOR  CLERICAL,  DUTIES. — No  per- 
son in  the  military  or  civil  service  of  the  Government  can 
lawfully  receive  extra  compensation  for  clerical  duties  per- 
formed for  a  military  court,  except  as  a  reporter  duly  ap- 
pointed or  detailed  as  such,  as  provided  in  paragraphs  112 
and  115,  supra;  and,  except  as  authorized  in  paragraph  115, 
no  person  in  the  civil  or  military  service  will  be  entitled  to 
extra  compensation  for  service  as  a  reporter  unless  such  serv- 
ice is  rendered  in  time  outside  of  the  business  hours  of  his 
regular  employment  and  does  not  interfere  with  his  per- 
formance of  his  regular  duties. 

NOTE. — See,  however,  paragraph  113  (f),  supra. 

SECTION  VI. 
INTERPRETER. 

119.  EMPLOYMENT  AND  PAT. — Under  such  regulations  as 
the  Secretary  of  War  may  from  time  to  time  prescribe,  the 
president  of  a  court-martial  or  military  commission,  or  court 
of  inquiry,  or  a  summary  court,  may  appoint  an  interpreter, 
who  shall  interpret  for  the  court  or  commission.     (A.  TV7. 
115.)     Interpreters  may  be  employed  whenever  necessary 
without  application  to  the  appointing  authority.     They  will 
be  allowed  the  pay  and  allowances  of  civilian  witnesses, 
which  will  be  paid  by  the  Finance  Department  on  vouchers 
certified  by  the  trial  judge  advocate  or  recorder. 

NOTE. — For  oath  of  interpreter  see  paragraph  136. 


100 


CHAPTER  VIII. 
COURTS-MARTIAL—ORGANIZATION. 

(Continued.) 


Section  I:  Challenges: 

120.  Occasion  for 102 

120a.  Peremptory  challenge 103 

121.  Grounds  for  challenge 103 

(a)  Principal  challenges   (1)    to    (8) 103 

(?>)  Challenges  for  favor 104 

122.  Challenge  of  new  member 104 

124.  Member  can  not  challenge 104 

125.  Procedure  upon  challenges 104 

126.  Member  disqualified  but  not  challenged 105 

127.  Waiver  of  objection 107 

128.  Liberality    required 107 

129.  Member  as  accuser  or  witness  for  the  prosecution 107 

130.  Member  signing  charges — Accuser 108 

131.  Member  of  court  as  witness 108 

Section  II:  Oaths: 

132.  Oath  of  members 109 

(a)  Oath,  (ft)  Affirmation,  (c)  Court  sworn  for 
each  case,  (d)  Additional  ceremony,  (e)  De- 
corum in  administering  oath 109 

133.  Oath  of  trial  judge  advocate 110 

134.  Oath  of  witness 110 

(a)  Oath,  (&)  Swearing  trial  judge  advocate 110 

135.  Oath  of  reporter 110 

136.  Oath  of  interpreter 110 

137.  Oath  to  test  competency 111 

138.  Oaths  for  administrative  purposes 111 

(a)  R.  S.,  Section  183,  (&)  A.  W.  114 111 

Section  III :  Continuances : 

139.  Authority  for 112 

140.  Reason  for  application  to  be  stated 112 

141.  Number  of  continuances 112 

Section  IV:  Completion  of  organization: 

142.  When  accomplished 113 


101 


•fl    120  CUAFTER,  VIII. 

SECTION  I. 
CHALLENGES. 

120.  OCCASION  FOR. — The  composition  of  the  court-martial 
having  been  made  known  to  the  accused  by  the  reading  of 
the  appointing  order,  together  with  any  orders  which  have 
operated  to  modify  the  composition  of  the  court  as  origi- 
nally constituted,  it  becomes  the  duty  of  the  trial  judge  advo- 
cate on  behalf  of  the  prosecution  to  challenge  any  member  of  the 
court  present  named  in  the  order  and  modifying  orders  to  whom 
the  prosecution  objects.  The  trial  judge  advocate  performs  this 
duty  by  challenging,  in  turn,  each  member  to  whom  he  objects. 
Members  of  a  general  or  special  court-martial  may  be  chal- 
lenged by  the  trial  judge  advocate  or  by  the  accused,  but  only 
for  cause  stated  to  the  court,  except  that  each  side  is  entitled  to 
one  peremptory  challenge;  but  the  law  member  of  the  court 
shall  not  be  challenged  except  for  cause.  (A.  W.  18.)  Chal- 
lenges by  the  trial  judge  advocate  shall  ordinarily  be  presented 
and  decided  before  those  by  the  accused  are  offered.  The  trial 
judge  advocate  may  use  his  one  peremptory  challenge  either 
before  presenting  any  challenges  for  cause  or  after  presenting 
one  or  more  challenges  for  cause  and  while  he  still  has  others 
to  present,  or  after  presenting  all  his  challenges  for  cause,  at  any 
time  he  sees  fit,  until  he  announces  his  acceptance  of  the  panel. 
He  may,  if  he  sees  fit,  after  challenging  a  member  for  cause,  if 
the  challenge  be  overruled,  use  his  peremptory  challenge  to 
remove  such  member  from  the  court.  After  a  trial  judge  advo- 
cate has  presented  all  the  challenges  which  he  has  to  present  and 
they  have  been  decided,  or  in  case  he  does  not  object  to  any 
member  of  the  court,  he  will  ask  the  accused  whether  lie  objects 
to  being  tried  by  any  member  present  named  in  the  order  and 
modifying  orders.  This  question  by  the  trial  judge  advocate 
will  be  considered  as  a  statement  that  the  prosecution  accepts 
the  panel  as  it  then  stands  and  has  no  further  challenges  to  pre- 
sent and  tenders  it  to  the  accused.  If  the  reply  of  the  accused 
be  in  the  negative,  the  court  and  the  trial  judge  advocate  and 
the  assistant  trial  judge  advocate,  if  any,  are  sworn;  if,  on  the 
other  hand,  the  accused  desires  to  object  to  any  member  or  mem- 
bers of  the  court,  he  exercises  his  right  in  this  respect,  in  person 


102 


COURTS-MARTIAL — ORGANIZATION.  ^f    12  Q& 

or  through  counsel,  by  challenging,  in  turn,  each  member  to 
whom  he  objects,  in  like  manner  as  the  trial  judge  advocate, 
and  may  likewise  use  his  peremptory  challenge  at  any  time  he 
sees  fit  until  he  has  finally  accepted  the  panel.  The  court  shall 
determine  the  relevancy  and  validity  of  challenges  for  cause, 
and  shall  not  receive  a  challenge  to  more  than  one  member  at 
a  time.  (A.  W.  18.)  Neither  the  prosecution  nor  the  accused 
may  challenge  the  law  member  of  the  court  except  for  cause. 
Neither  a  summary  court  officer  nor  the  trial  judge  advocate 
nor  the  defense  counsel  of  a  general  or  special  court-martial  is 
subject  to  challenge.  (Digest,  p,  502  IV,  N;  Davis,  p.  85,  n.  3.) 

NOTE  1. — The  various  classes  of  challenges  far  ca-ase  recognized 
at  common  law  have  been  practically  reduced  in  courts-martial  prac- 
tice to  two,  viz,  (1)  principal  challenges,  or  those  where  the  member 
must  be  excused  upon  proof  of  the  ground  for  challenge  as  alleged; 
(2)  for  favor,  -where  the  court  must  decide  whether  the  facts  proved 
constitute  cause'to  excuse  the  member. 

NOTE  2. — For  procedure  of  the  court  in  ruling  and  voting  on  chal- 
lenges see  paragraph  125,  infra. 

120a.  A  peremptory  challenge  does  not  require  any  good 
reason  or  ground  therefor  to  exist  or  to  be  stated. 

121.  GROUNDS  FOR  CHALLENGE — (a)  Principal  Chal- 
lenges.— In  the  following  cases  a  member  will  be  excused 
when  challenged  upon  proof  of  the  fact  as  alleged : 

(1)  That  lie  sat  as  a  member  of  a  court  of  inquiry  which 
investigated  the  charges. 

(2)  That  he  has  personally  investigated  the  charges  and 
expressed  an  opinion  thereon,  or  that  he  has  formed  a  posi- 
tive and  definite  opinion  as  to  the  guilt  or  innocence  of  the 
accused. 

(3)  That  he  is  the  accuser. 

(4)  That  he  will  be  a  witness  for  the  prosecution  or  for 
the  defense. 

(5)  That  (upon  a  rehearing  of  the  case)  he  sat  as  a  mem- 
ber on  the  former  trial. 

(6)  That,  in  the  case  of  the  trial  of  an  officer,  the  member 
will  be  promoted  by  the  dismissal  of  the  accused. 

(7)  That  he  is  related  by  blood  or  marriage  to  the  accused, 

(8)  That  he  has  a  declared  enmity  against  the  accused. 


103 


Tf    122  CHAPTER  VIII. 

(b)  Challenges  for  Favor. — Where  prejudice,  hostility, 
bias,  or  intimate  personal  friendship  are  alleged  it  is  for  the 
court,  after  hearing  the  grounds  for  challenging  stated  and 
the  reply,  if  any,  of  the  challenged  member,  as  well  as  any 
other  evidence  presented,  to  determine  whether  the  grounds 
stated  and  proved  or  admitted  are  sufficient  in  fact  to  dis- 
qualify a  challenged  member. 

122.  CHALLENGE  or  NEW  MEMBER. — Where  new  members 
join  or  are  added  to  the  court  after  its  organization  the 
order  detailing  such  new  members  shall  be  read  and  the 
trial  judge  advocate  and  the  accused  be  given  full  opportunity 
to  challenge.  The  record  will  show  affirmatively  that  the 
right  has  been  accorded  the  accused  to  challenge  every  mem- 
ber of  the  court. 

Either  side  may  use  its  one  peremptory  challenge  against  any 
such  new  member,  unless  it  has" already  been  used. 

[Paragraph  123  has  been  omitted  in  this  revision.] 

124.  MEMBER    CAN    NOT    CHALLENGE. — There    is    no    au- 
thority of  law  or  custom  of  the  service  for  a  member  of  a 
court-martial  to  challenge  another  member,  but  where  one 
member  has  knowledge  of  the  fact  that  another  is  the  ac- 
cuser in  the  case  or  will  be  a  witness  for  the  prosecution,  or 
investigated  the  case,  or  is  subject  to  challenge  for  any  other 
reason,  he  will  bring  the  fact  to  the  attention  of  the  court  in 
order  that  proper   action  may  be  taken.     (See  par.   129, 
below.) 

125.  PROCEDURE  UPON  CHALLENGES. — A  positive  declara- 
tion by  a  member  challenged  on  the  ground  of  prejudice  or 
interest  that  he  is  not  prejudiced  for  or  against  the  accused 
nor  interested  in  the  case  should  ordinarily  be  satisfactory  to 
the  trial  judge  advocate  and  the  accused,  and,  if  so,  the  chal- 
lenger should  be  permitted  to  withdraw  the  challenge  and  the 
record  should  so  show.     If,  however,  the  statement  is  unsatis- 
factory, or  the  member  makes  no  response,  the  challenger 
may  offer  testimony  in  support  of  his  challenge  or  may  sub- 
ject the  challenged  member  to  an  examination  under  oath 
as  to  his  competency  as  a  member.    In  such  a  case  the  trial 
judge  advocate  administers  the  oath  to  the  challenged  mem- 
ber.   Witnesses  may  be  introduced  in  rebuttal  on  behalf  of  the 


104 


COURTS-MARTIAL ORGANIZATION-.  ^f    126 

challenged  member  and  arguments  may  be  made.  All  chal- 
lenges which  are  not  withdrawn,  except  where  a  member  is 
challenged  as  the  accuser  or  as  a  witness  for  the  prosecution 
and  such  fact  is  admitted,  must  be  passed  upon  by  the.  court. 
After  all  evidence  pro  or  con  has  been  received,  or  the  chal- 
lenger or  challenged  member,  either  or  both,  has  declined  to 
introduce  any  evidence,  the  court  will  be  closed,  and  the  court 
will  deliberate  and  vote  upon  the  challenge  by  secret  written 
ballot,  which  ballot  may  be  in  the  form  "  sustained "  or  "  not 
sustained."  The  junior  member  of  the  court  shall  in  each 
case  count  the  votes,  which  count  shall  be  checked  by  the 
president,  who  will  announce  the  result  of  the  ballot  to  the 
members  of  the  court.  All  ballots  shall  be  destroyed  as  soon 
as  the  result  is  announced,  unless  some  member  of  the  court  de- 
sires first  to  verify  the  count,  when  they  shall  be  immediately 
destroyed  after  such  verification.  A  majority  of  the  ballots  cast 
by  the  members  present  at  the  time  the  vote  is  taken  shall  de- 
cide the  question  of  sustaining  or  not  sustaining  the  challenge. 
(A.  W.  31.)  A  tie  vote  on  a  challenge  is  a  vote  in  the  negative, 
and  the  challenge  is  not  sustained.  Upon  the  court  being 
opened,  the  president  shall  state,  in  the  presence  of  the  trial 
judge  advocate,  assistant  trial  judge  advocate,  defense  counsel 
and  assistant  defense  counsel,  other  counsel  for  the  accused,  and 
the  accused,  that  the  challenge  has  been  sustained  or  not  sus- 
tained. The  whole  proceedings  will,  in  the  case  of  a  general 
court-martial,  or  a  special  court-martial  where  the  evidence 
has  been  ordered  recorded,  appear  in  the  record;  and  in  the 
case  of  any  other  special  court-martial,  the  record  will  show 
that  evidence  touching  the  eligibility  of  the  challenged  member 
was  heard,  if  such  be  the  fact,  and  that  the  challenge  was  sus- 
tained or  not  sustained  upon  the  taking  of  a  secret  ballot. 
During  the  deliberation  of  the  court  the  challenged  member 
will  withdraw.  If  but  four  members  of  a  general  court- 
martial,  or  two  members  of  a  special  court-martial,  remain  they 
may  pass  upon  the  challenge.  (See  Chap.  II,  Sec.  II.) 

NOTE. — For  form  of  oath  to  be  administered  to  challenged  member 
see  paragraph  137. 

126.  MEMBER  DISQUALIFIED   BUT   NOT   CHALLENGED. —  (a) 
In  the  absence  of  a  challenge  the  court  of  itself  will  not 


105 


^[    126  CHAPTER  VIII. 

ordinarily  excuse  a  member  from  sitting  on  the  trial  of  a 
case,  but  a  member  not  challenged,  who  has  formed  an  opin- 
ion concerning  the  case  or  any  of  the  material  facts  thereof, 
or  who  for  any  other  reason  thinks  himself  disqualified,  or 
who  is  aware  of  any  facts  which  he  believes  might  cause  either 
party  to  desire  to  challenge  him,  or  who  thinks  himself  dis- 
qualified for  reasons  other  than  those  indicated  in  paragraph 
129,  below,  will  announce  in  open  court  his  supposed  dis- 
qualification, or  the  facts  which  he  thinks  miglit  cause  either 
party  to  desire  to  challenge  him  (that  is,  that  he  has  some 
knowledge  of  the  facts,  or  has  formed  some  opinion,  etc.,  but 
will  carefully  refrain  from  stating  his  opinion  as  to  the  guilt  or 
innocence  of  the  accused,  or  the  particular  facts  of  which  he  has 
knowledge),  in  order  that  he  may  be  challenged;  or  he  may 
apply  to  the  appointing  authority  to  be  relieved. 

(b)  While  a  member  is  not,  strictly  speaking,  "  a  witness  " 
within  the  meaning  of  the  eighth  or  ninth  articles  of  war,  or  of 
this  paragraph,  unless  he  actually  testifies  at  the  trial,  still,  as  a 
matter  of  good  administration  and  in  harmony  with  the  spirit 
and  purpose  of  the  articles  of  war,  a  member  may  be  excused  by 
the  court  without  challenge,  and  should  be  so  excused  (unless 
the  objection  is  voluntarily  waived  by  the  defense)  whenever  it 
appears  to  the  court  either  that  (1)  he  testified  or  submitted  a 
written  statement  on  the  preliminary  investigation,  unless  at 
the  request  of  the  accused;  (2)  he  investigated  the  charges 
either  under  paragraph  76a,  supra,  or  otherwise,  or  made  any 
official  report  or  indorsement  expressing  his  opinion  thereon; 
(3)  he  was  the  medical  officer  before  whom  the  accused  was 
brought  for  examination  under  the  provisions  of  paragraph  76a, 
supra,  during  the  investigation  of  the  charges,  or  was  a  member 
of  a  medical  board  convened  in  the  case  under  the  provisions  of 
paragraph  76c,  supra,  or  of  paragraph  219d,  infra,  or  has  in  any 
other  case  where  the  sanity  or  mental  condition  of  the  accused 
is  made  an  issue  in  the  trial  officially  expressed  his  opinion 
thereon;  or  (4)  if,  on  the  opening  of  the  trial  or  at  any  time 
during  the  trial,  the  trial  judge  advocate  announces  that  the 
member  is  a  witness  for  the  prosecution  or  that  it  is  expected 
that  he  will  be  called  as  a  witness  for  the  prosecution. 

NOTE  1. — As  to  statutory  disqualification  see  paragraphs  129  to 
131,  infra. 

106 


COURTS-MARTIAL — ORGANIZATION.  ^f    127 

NOTE  2. — Where  a  member  of  the  court  was  a  member  of  a  medical 
board  convened  under  paragraph  76c,  supra,  or  under  paragraph  219d, 
infra,  whose  report  is  received  in  evidence  at  the  trial  under  any  of 
the  provisions  of  paragraph  219,  infra,  he  thereby  becomes  a  witness 
within  the  meaning  of  the  eighth  and  ninth  articles  of  war,  and  is  a 
witness  for  the  prosecution  and  as  such  disqualified  to  sit  further  on 
the  trial,  if  the  report  of  such  medical  board  (unless  such  member 
signed  a  minority  report  dissenting  therefrom),  or  a  minority  report 
signed  by  such  member,  is  to  the  effect  that  the  accused  did  not  at  the 
time  of  his  examination  by  such  medical  board,  nor  at  the  time  of 
the  commission  of  the  alleged  offense,  suffer  from  any  mental  de- 
fect or  derangement  whatever. 

127.  WAIVER  OF  OBJECTION. — The  rule  is  that  challenges 
should  be  made  before  the  arraignment,  and  if  an  objection 
to  the  competency  of  a  member,  except  his  ineligibility  under 
paragraph  129,  infra,  was  known  at  that  time  and  not  made, 
it  will  be  considered  as  waived ;  but  if  the  cause  of  a  mem- 
ber's incompetericy  was  not  known  at  the  time  of  arraign- 
ment or  did  not  arise  until  later,  the  court  will  entertain  a 
challenge  on  such  cause  at  any  stage  of  the  proceedings. 

NOTE. — Ineligibility  under  paragraph  129,  infra,  being  mandatory 
under  the  statute  (A.  W.  8,  9),  can  not  be  waived.  If,  therefore,  it 
develops,  at  any  time  during  the  trial,  that  a  member  is  (a)  an 
accuser  or  (b)  a  witness  for  the  prosecution,  he  must  be  excused, 
although  not  challenged. 

128.  LIBERALITY  REQUIRED. — Courts  should  be  liberal  in 
passing  upon  challenges,  but  they  will  not  entertain  an  ob- 
jection that  is  not  specific,  and  they  should  be  reluctant  to 
sustain  one  upon  the  mere  assertion  of  the  challenger,  except 
where  it  is  admitted  by  the  challenged  member. 

129.  MEMBER.  AS  ACCUSER  OR  WITNESS  FOR  THE  PROSECU- 
TION.— No  officer  shall  be  eligible  to  sit  as  a  member  of  a. 
general  or  special  court-martial  when  he  is  the  accuser  or  a 
witness  for  the  prosecution.     (A.  W.  8,  9.)     After  the  ac- 
cused is  brought  before  the  court,  preferably  before  the 
court  is  sworn,  any  member  thereof  who  is  or  believes  him- 
self to  be  the  accuser  in  the  case  will  formally  announce  that 
fact  to  the  court,  whereupon  he  will  be  excused.     When  the 
accused,  his  counsel,  the  trial  judge  advocate,  the  defense 
counsel,  or  any  member  of  the  court,  at  any  time  before  the 
sentence,    shall   have   reason   to   believe   that   any   member 
thereof  is  the  accuser  in  the  case,  or  may  be  called  as  a  wit- 


^f    130  CHAPTER  VIII. 

ness  for  the  prosecution,  such  belief  shall  be  communicated 
to  the  court,  and  if  the  court,  after  hearing  the  facts,  find 
that  such  member  is  the  accuser  or  is  to  be  called  as  a  witness 
for  the  prosecution,  he  shall  be  excused.  If  at  any  stage 
of  the  proceedings  prior  to  the  findings  any  member  of  the 
court  be  called  as  a  witness  for  the  prosecution,  he  shall, 
before  qualifying  as  a  witness,  be  excused  from  further  duty 
as  a  member. 

130.  MEMBER   SIGNING   CHARGES — ACCUSER. — Whether   or 
not  an  officer  who  is  a  member  of  the  court  is  the  accuser 
in   a  particular  case  is  a  question   of   fact.     If,  notwith- 
standing his  ineligibility,  he  does  sit  as  a  member  of  a 
general  or  special  court-martial,  the  proceedings  are  neces- 
sarily invalid.     (A.  W.  8,  9;  Op.  J.  A.  G.,  Oct.  11,  1913; 
id.,  Nov.  13,  1913,  Bui.  38,  War  Dept,  1913,  p.  6.)     An 
officer  who  has  signed  and  sworn  to  the  charges  in  a  particular 
case  is  necessarily  an  accuser  in  that  case,  and  therefore 
ineligible  to  sit  as  a  member  of  the  trial  court.    But,  while 
prima  facie  the  person  who  signs  and  swears  to  the  charge  is 
the  only  accuser  in  the  case,  that  is  not  always  true.     There 
may  in  fact  be  another  or  several  others  who  are  real  accusers, 
and  therefore  also  ineligible  to  sit  on  the  trial  court.    If  such  a 
question  arises  at  any  time  during  the  trial  it  is  within  the 
province  of  the  court  tp  hear  evidence  on  that  issue  and  to 
decide  the  question.    If  in  such  a  case  the  court  should  decide 
that  any  member  so  in  question  is  eligible,  such  decision  and  all 
the  evidence  upon  which  the  court  reached  its  decision  will, 
in  the  case  of  a  general  court-martial,  or  in  the  case  of  a  spe- 
cial court-martial  where  the  evidence  has  been- ordered  recorded, 
be  made  of  record ;  and  in  the  case  of  any  other  special  court- 
martial  the  record  will  show  that  evidence  touching  the  eligi- 
bility of  the  officer  was  heard  by  the  court,    and  a  summary 
of  such  evidence,  and  the  finding  arrived  at  thereon. 

NOTE.  As  to  the  procedure  of  the  court  in  determining  the  question 
of  the  eligibility  of  the  member,  see  paragraph  125. 

131.  MEMBER  OF  COURT  AS  WITNESS. —  (a)  For  the  Prose- 
cution.— No  officer  shall  be  eligible  to  sit  as  a  member  of  a 
general  or  a  special  court-martial  who  is  a  witness  for  the 
prosecution.     (A.  W.  8,  9;  Bui.  38,  War  Dept,  1913,  p.  6.) 

108 


COURTS-MARTIAL, ORGANIZATION.  If    132 

(Z>)  For  the  Defense. — The  fact  that  a  member  is  a  wit- 
ness for  the  defense  will  not  necessarily  disqualify  him  to  sit 
as.  a  member  of  the  court,  and  the  fact  that  such  a  witness 
sits  throughout  the  trial  as  a  member  of  the  court  will  not 
in  any  way  affect  the  validity  of  its  proceedings. 

(c)  When  Called  by  Court. — Whether  a  member  called  as 
a  witness  by  the  court  is  to  be  considered  as  a  witness  for 
the  prosecution  depends  on  ~the  character  of  his  testimony, 
which  should  be  carefully  considered  before  a  conclusion  is 
reached  that  he  is  not.  In  any  case  of  doubt  he  should  be 
excused  from  further  participation  in  the  trial  as  a  member. 

SECTION  II. 
OATHS. 

132.  OATH  OF  MEMBERS. —  (a)  The  challenges  having  been 
disposed  of,  the  trial  judge  advocate  of  a  general  or  special 
court-martial  shall  administer  to  the  members  of  the  court, 
before  they  proceed  upon  any  trial,  the  following  oath  or 
affirmation  (A.  W.  19)  : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will  well  and  truly  try 
and  determine,  according  to  the  evidence,  the  matter  now  before  you, 
between  the  United  States  of  America  and  the  person  to  be  tried,  and 
that  you  will  duly  administer  justice,  without  partiality,  favor,  or 
affection,  according  to  the  'provisions  of  the  rules  and  articles  for  the 
government  of  the  Armies  of  the  United  States,  and  if  any  doubt 
should  arise,  not  explained  by  said  articles,  then  according  to  your 
conscience,  the  best  of  your  understanding,  and  the  custom  of  war  in 
like  cases;  and  you  do  further  swear  (or  affirm)  that  you  will  not 
divulge  the  findings  or  sentence  of  the  court  until  they  shall  be  pub- 
lished by  the  proper  authority  or  duly  announced  by  the  court,  except 
to  the  trial  judge  advocate  and  assistant  trial  judge  advocate;  neither 
will  you  disclose  or  discover  the  vote  or  opinion  of  any  particular 
member  of  the  court-martial  upon  a  challenge  or  upon  the  findings  or 
sentence,  unless  required  to  give  evidence  thereof  as  a  witness  by  a 
court  of  justice  in  due  course  of  laio.  So  help  you  God. 

(b)  In  case  of  affirmation  the  closing  sentence  of  adjura- 
tion will  be  omitted. 

(c)  When  more  than  one  case  is  tried  by  the  same  court, 
the  oath  must  be  administered  anew  for  each  case. 


109 


^[    133  CHAPTEK   VIII. 

(d)  The  oaths  or  affirmations  prescribed  in  A.  TV7.  19  for 
the  members,  the  trial  judge  advocate,  a  witness,  and  others 
will  always  be  administered,  but  in  addition  there  may  be 
such  additional  ceremony  or  acts  as  will  make  the  oath  or 
affirmation  binding  on  the  conscience  of  the  person  taking  it. 

{e)  For  decorum  to  be  observed  during  the  administra- 
tion of  oaths  see  Chapter  VII,  Section  I. 

133.  OATH  OF  Trial  JUDGE  ADVOCATE. — When  the  oath  or 
affirmation  has  been  administered  to  the  members  of  a  gen- 
eral or  special  court-martial,  the  president  of  the  court  shall 
administer  to  the  trial  judge  advocate  and  to  each  assistant 
trial  judge  advocate,  if  any,  an  oath  or  affirmation  in  the 
following  form  (A.  W.  19) ; 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will  faithfully  and  impar- 
tially perform  the  duties  of  a  trial  judge  advocate,  and  will  not 
divulge  the  findings  or  sentence  of  the  court  to  any  but  the  proper 
authority  until  they  shall  be  duly  disclosed.  So  help  you  God, 

134.  OATH  OF  WITNESS. — (a)  All  persons  who  give  evi- 
dence before  a  court-martial  shall  be  examined  on  oath  or 
affirmation  in  the  following  form  (A.  W.  19),  administered 
by  the  trial  judge  advocate: 

You  swear  (or  affirm)  that  the  evidence  you  shall  give  in 
the  case  now  in  hearing  shall  he  tJie  truth,  the  whole  truth, 
and  nothing  but  the  truth.  So  h-elp  you  God. 

(b]  If  either  the  trial  judge  advocate  or  assistant  trial 
judge  advocate  is  to  testify,  the  oath  or  affirmation  will  be 
administered  by  the  other  or  by  the  president. 

13o.  OATH  OF  REPORTER. — (a)  Every  reporter  of  the  pro- 
ceedings of  a  court-martial  shall,  before  entering  upon  his 
duties,  make  oath  or  affirmation  in  the  following  form  (A.  W. 
19),  administered  by  the  trial  judge  advocate: 

You  swear  (or  affirm)  that  you  will  faithfully  perform 
the  duties  of  reporter  to  this  court.  So  help  you  God. 

(b)  For  authority  for  hiring  reporters  and  compensation 
see  Chapter  VII,  Section  V. 

136.  OATH  OF  INTERPRETER. — Every  interpreter  in  the  trial 
of  any  case  before  a  court-martial  shall,  before  entering  upon 
his  duties,  make  oath  or  affirmation  m  the  following  form 
(A.  W.  19),  administered  by  the  trial  judge  advocate: 


110 


COURTS-MARTIAL — ORGANIZATION.  ^f    137 

You  swear  (or  affirm)  that  you  will  tr-uly  interpret  in  the 
cane  11.010  in  hearing.  So  help  you  God. 

137.  OATH  TO  TEST  COMPETENCY. — When  a  member  of  a 
general  or  special  court-martial  is  challenged  and  it  is  de- 
sired to  question  him  regarding  his  eligibility  to  sit  as  a 
member  in  the  trial  of  a  case,  the  trial  judge  advocate  will 
administer  to  him  the  following  oath : 

You  sivear  that  you  ^oiU  true  answers  make  to  questions 
touching  your  competency  as  a  member  of  the  court  in  this 
case.  So  help  you  God. 

138,  OATHS  FOR  ADMINISTRATIVE  PURPOSES. — (a)  Any  offi- 
cer or  clerk  of  any  of  the  departments  lawfully  detailed  to 
investigate  frauds  on,  or  attempts  to  defraud,  the  Govern- 
ment, or  any  irregularity  or  misconduct  of  any  officer  or 
agent  of  the  United  States,  and  any  officer  of  the  Army, 
Navy,  Marine  Corps,  or  Revenue-Cutter  Service  detailed  to 
conduct  an  investigation,  and  the  recorder,  and  il  there  be 
none  the  presiding  officer,  of  any  military,  naval,  or  Reve- 
nue-Cutter Service  board  appointed  for  such  purpose,  shall 
have  authority  to  administer  an  oath  to  any  witness  attend- 
ing to  testify  or  depose  in  the  course  of  such  investigation, 
(R.  S.,  §  183,  as  amended  by  the  act  of  Feb.  13,  1911,  36 
Stat.,  898.) 

(b)  Any  judge  advocate  or  acting  judge  advocate,  the 
president  of  a  general  or  special  court-martial,  any  sum- 
mary court-martial,  the  trial  judge  advocate  or  any  assistant 
trial  judge  advocate  of  a  general  or  special  court-martial, 
the  president  or  the  recorder  of  a  court  of  inquiry  or  of  a 
military  board,  any  officer  designated  to  take  a  deposition, 
any  officer  detailed  to  conduct  an  investigation,  and  the 
adjutant  of  any  command  shall  have  power  to  administer 
oaths  for  the  purposes  of  the  administration  of  military 
justice  and  for  other  purposes  of  military  administration; 
and  in  foreign  places  where  the  Army  may  be  serving  shall 
have  the  general  powers  of  a  notary  public  or  of  a  consul 
of  the  United  States  in  the  administration  of  oaths,  the 
execution  and  acknowledgment  of  legal  instruments,  the 
attestation  of  documents,  and  all  other  forms  of  notarial 
acts  to  be  executed  by  persons  subject  to  military  law. 
(A.  W.  114.) 


in 


11     139  CHAPTER  VIII. 

SECTION  III. 
CONTINUANCES. 

139.  AUTHORITY  FOR. — A  court-martial  may,  for  reason- 
able cause,  grant  a  continuance  to  either  party  for  such 
time  and  as  often  as  may  appear  to  be  just.     (A.  W.  20.) 
If  before  the  first  meeting  of  the  court  a  continuance  is 
deemed    necessary    by    either    party,    application    therefor 
should  be  made  to  the  appointing  authority,  but  if  made 
after  assembling  the  application  will  be  made  to  the  court. 
When  application  is  made  to  the  court  for  an  extended 
delay  which  appears  to  be  well  founded,  it  may  be  referred 
to  the  appointing  authority  in  order  that  he  may  determine 
whether  the  court  should  grant  it  or  whether  he  should  dis- 
solve the  court. 

140.  REASON  FOR  APPLICATION  TO  BE  STATED. — The  party 
desiring  a  continuance  must  state  the  reasons  upon  which 
his  application  is  based.    When  it  is  desired  because  of  the 
absence  of  a  witness  he  should  distinctly  show  that  the  wit- 
ness is  material,  that  he  has  used  due  diligence  to  procure 
the  testimony  or  attendance  of  the  witness,  and  that  he  has 
reasonable  ground  to  believe  that  he  will  be  able  to  procure 
such   testimony    or   attendance   within    a    reasonable   time, 
which  time  shall  be  stated,  and  the  facts  which  he  expects  to 
be  able  to  prove  by  such  witness,  and  that  he  can  not  so  well 
prove  the  same  by  any  other  testimony  or  evidence  in  the  case. 
If  the  opposite  party  will  admit  that  the  absent  witness,  if  pres- 
ent in  court,  would  testify  as  stated,  the*  the  court  may,  in  its 
discretion,  refuse  a  continuance  for  the  purpose  of  procuring 
such  testimony.     (See  notes  3  and  4  to  par.  159,  infra.) 

141.  NUMBER  OF  CONTINUANCES. — The  number  of  continu- 
ances which  may  be  granted  is  not  limited,  but  where  ex- 
tended delays  will  ensue  the  court  will  be  justified  in  exact- 
ing proof  of  due  diligence  on  the  part  of  the  party  request- 
ing the  same,  and  may  even  require  tin1  reasons  to  be  stated 
under  oath  if  it  has  reason  to  suspect  that  the  intention  is 
merely  to  delay  the  proceedings. 


112 


COURTS-MARTIAL, — ORGANIZATION.  ^f    142 

SECTION  IV. 
COMPLETION  OF  ORGANIZATION. 

142.  WHEN  ACCOMPLISHED. — The  court  having  met,  the 
accused  and  his  individual  counsel,  if  any,  having  been  intro- 
duced, and  the  defense  counsel  of  the  court  being  present,  the 
reporter  sworn,  and  the  convening  order  read,  the  right  of 
challenge  accorded,  and  the  court  and  trial  judge  advocate 
sworn,  the  organization  of  the  court  is  complete  for  the  trial 
of  the  case. 

21358°— 20 3 


113 


CHAPTER  IX, 
COURTS-MARTIAL— PROCEDURE  DURING  TRIAL. 


Section  I:  Arraignment: 

143.  When  made 115 

144.  Procedure 115 

Section  II:  Pleas: 

145.  Kinds  of  pleas 115 

(a)  To  the  jurisdiction;    (b)  in  abatement;    (c) 

in  bar  of  trial ;  (d)  to  the  general  issue 115 

146.  Plea  to  the  jurisdiction 116 

Grounds  for,  enumerated,  (a)  to  (d) 116 

147.  Plea  in  abatement 117 

148.  Plea  in  bar  of  trial 117 

'  149.  Statute  of  limitations 117 

1.  Definition 117 

2.  Limitations  as  to  time,  (a)  to  (d) 118 

3.  Limitation  as  to  number  of  trials,  (a)  to  (g) 119 

150.  Pardon 121 

151.  Constructive    condonation 121 

152.  (a)  Former  punishment 122 

(5)   Illegal  enlistment 122 

(c)  Release  from  arrest 122 

(d)  Other  forms  of  inadmissible  pleas 122 

153.  Action  upon  special  pleas 123 

Procedure,  (a)  to  (d) 123 

154.  Pleas  to  the  general  issue 124 

Discussed,  (a)  to  (ff) 124 

Section  III:  Refusal  to  plead: 

155.  Action 127 

Section  IV :  Motions  and  other  incidents  of  the  trial : 

156.  Motion  to  sever 127 

157.  Motion  to  elect 127 

158.  Nolle    prosequi 128 

158a,  Aider  of  defective  specification 129 

158b.  Variance 130 

15Sc.  Finding  of  not  guilty  at  the  close  of  the  case  for  the 

prosecution 130 

158d.  Convening  authority— Action  when  court-martial  re- 
quests directions 131 


114 


COURTS-MARTIAL — PROCEDURE  DURING  TRIAL,   ^f  143 

SECTION  I. 
ARRAIGNMENT. 

143.  WHEN    MADE. — Upon    the   completion   of    the    organi- 
zation of  the  court  in  accordance  with  the  provisions  of  para- 
graph  142,   supra,   the  court  is   ready  to  proceed   with  the 
trial  of  the  charges  in  the  case  then  before  the  court.     In 
each  case  tried  by  the  court  the  appointing  order  must  be 
read  anew,  a  new  opportunity  to  challenge  must  be  given, 
and  the  members,  trial  judge  advocate  and  assistants,  if  any, 
reporter,  and  interpreter  must  be  sworn  anew.     In  each  case 
the  proceedings  must  be  complete  without  reference  to  any 
other  case. 

144.  PROCEDURE. — The  court   being  organized,   and  both 
parties  ready  to  proceed,  the  trial  judge  advocate  will  read 
the  charges  and  specifications,  separately  and  in  order,  to 
the  accused  and  ask  him  how  he  pleads  to  each.    The  order 
pursued,  in  case  of  several  charges  or  specifications,  will  be 
to  arraign  on  the  first,  second,  etc.,  specifications  to  the  first 
charge,  then  on  the  first  charge,  and  so  on  with  the  rest. 
The  reading  of  the  charges  and  specifications  and  the  pleas 
of  the  accused  in  answer  thereto  constitute  the  arraignment 
of   the   accused.     In  reading  the   charges   the   trial   judge 
advocate  will  also  read  the  name  and  rank  of  the  officer 
preferring  them. 

NOTE. — For  decorum  to  be  observed  during  the  arraignment  see 
paragraph  86. 

SECTION  II. 
PLEAS. 

145.  KINDS   OF  PLEAS. — In   court-martial   procedure    the 
usual  pleas  are  the  following:  (a)  Pleas  to  the  jurisdiction; 
(b)  pleas  in  abatement;  (c)  pleas  in  bar  of  trial;  and  (d) 
pleas  to  the  general  issue.    The  first  three  mentioned  are  also 
known  as  special  pleas.    These  pleas  should  be  made  in  the 
order  named.     (Dudley,  p.  93;  Bouvier's  Law  Dictionary, 
Rawle,  3d  Rev.,  p.  2603.) 


115 


^    146  CHAPTER  IX. 

146.  PLEA  TO  THE  JURISDICTION. — A  plea  to  the  jurisdic- 
tion denies  the  right  of  the  court  to  try  the  case.  The  follow- 
ing are  grounds  for  a  plea  to  the  jurisdiction  of  a  court : 

(a)  That  it  was  appointed  by  an  officer  who  did  not  have 
the  legal  authority  to  do  so  (see  Chap.  Ill,  Courts-martial — 
By  whom  appointed) ; 

(5)  That  it  is  composed  wholly  or  in  part  of  members  not 
authorized  by  law  to  sit  upon  such  court-martial  (see  Chap. 
II,  Courts-martial — Composition) ; 

(c)  That  the  accused  is  not  subject  to  its  jurisdiction  (see 
Chap.  I,  Persons  subject  to  military  law)  ;  or 

( d)  That  it  has  not  legal  power  to  try  the  offense  charged 
(see  Chap.  XVII,  Punitive  articles). 

A  plea  to  the  jurisdiction,  if  well  grounded  and  sustained 
by  the  court,  bars  further  prosecution  before  the  court.  If 
well  grounded  and  not  sustained  by  the  court,  the  proceed- 
ings may  be  disapproved  by  the  appointing  authority,  or, 
even  though  approved,  may  be  reviewed  on  writ  of  habeas 
corpus  by  a  United  States  court,  which  will  cause  the  pro- 
ceedings to  be  set  aside  as  illegal  and  void.  Waiver  of  objec- 
tion will  never  avail  to  confer  jurisdiction  upon  a  court  not 
legally  possessing  it,  even  though  the  accused  fails  to  submit 
a  plea  to  the  jurisdiction  at  the  proper  time. 

The  objection  may  be  taken  at  any  time  during  the  proceed- 
ings, and  after  a  plea  of  either  "  guilty  "  or  "  not  guilty  " ;  and 
failure  of  the  record  to  show  jurisdiction  will  be  ground  for  dis- 
approval, or  for  setting  aside  the  proceedings,  findings,  and 
sentence. 

NOTE  1. — It  is  the  imperative  duty  of  the  trial  judge  advocate  to 
see  that  the  record  shows  all  the  essential  jurisdictional  facts,  includ- 
ing particularly  evidence  that  (a)  the  accused  is  a  person  subject  to 
military  law,  and  (b)  that  the  person  arraigned  before  the  court  as  the 
accused  is  actually  the  same  person  named  as  the  accused  in  the 
charges. 

A  plea  of  not  guilty  or  of  guilty  to  a  specification,  without  raising 
any  question  of  identity,  is  sufficient  evidence  that  the  accused  so 
pleading  is  the  same  person  named  in  the  specification. 

NOTE  2. — Whenever  the  findings  and  sentence  are  disapproved  or 
vacated  because  of  failure  of  the  record  to  show  jurisdiction,  a  re- 
hearing or  new  trial  before  another  court  may  be  ordered,  unless  the 


116 


COURTS-MAKTIAL — PROCEDURE  DURING   TRIAL,  ^f  147 

record  of  trial  affirmatively  shows  that  accused  is  not  a  person  mbject 
to  military  law.  But  in  any  such  case,  if  execution  of  the  sentence 
had  been  ordered  by  the  reviewing  authority  (or,  if  there  be  one,  by 
the  confirming  authority)  before  it  was  so  disapproved  or  vacated  (A. 
W.  40,  50^),  the  accused  may,  at  such  second  trial,  plead  to  the  juris- 
diction that  the  court  at  the  former  trial  did  in  fact — although  not  so 
shown  by  its  record — have  jurisdiction;  and  if  such  plea  be  sustained 
by  the  proofs,  the  proceedings  will  thereupon  be  terminated  for  want 
of  jurisdiction. 

147.  PLEA  IN  ABATEMENT. — A  plea  in  abatement  is  based 
upon  some  defect  in  the  charge  or  specification  and  is  one 
that  operates  merely  to  delay  the  trial,  such  as  an  error  in 
the  name,  rank,  or  organization  of  the  accused  or  in  the 
allegation  as  to  time  and  place  in  the  specification.     An 
accused  who  submits  a  plea  in  abatement  must  show  how  the 
error  may  be  amended.     When  a  plea  in  abatement  is  sus- 
tained, the  trial  judge  advocate  will  correct  the  charge  and 
specification  objected  to  so  as  to  meet  the  objection,  and  the 
trial  will  proceed  on  the  corrected  charges.     To  enable  him 
to  make  the  correction  a  continuance  may  be  granted.     Mat- 
ters which  might  have  been  objected  to  by  a  plea  in  abate- 
ment will  be  considered  as  waived  by  pleading  to  the  general 
issue. 

148.  PLEA  IN  BAR  OF  TRIAL. — A  plea  in  bar  of  trial,  if 
sustained,  is   a  substantial  and  conclusive  answer  to  the 
charge  or  specification  to  which  it  is  addressed.     Such  a 
plea  may  be  made  on  the  grounds  set  forth  in  paragraphs 
149,  150,  and  151. 

NOTE. — Insanity  or  mental  defect  cr  derangement  need  not  be 
specially  pleaded,  but  the  question  may  be  raised  on  the  trial  at  any 
time  before  sentence.  (See  paragraph  219,  infra.) 

149.  THE    STATUTE    OF    LIMITATIONS. —  (1)    Definition. — 
Statutes  of  limitation  in  criminal  law  are  statutes  of  which 
the  accused  may  take  advantage  and  deprive  the  Govern- 
ment of  the  power  to  try  and  punish  him  after  the  lapse  of  a 
specific  period  since  the  offense  was  committed.     They  are 
enacted  to  secure  the  prompt  punishment  of  criminal  offenses 
and  with  a  view  to  obtain  the  attendance  of  the  witnesses  at 
the  trial  while  the  recollection  of  the  event  is  still  fresh  in 
their  minds.    In  court-martial  practice  prosecutions  are  lim- 
ited both  as  to  time  and  as  to  number.    (A.  W.  39,  40.) 


117 


^[    149  CHAPTER  IX. 

(2)  Limitations  as  to  Time. — (a)  In  the  following  cases 
there  is  no  limitation  as  to  time  upon  trial  by  court-martial 
(A.  W.  39),  viz: 

(1)  Desertion  committed  in  time  of  war; 

(2)  Mutiny;  or 

(3)  Murder. 

(&)  The  period  of  limitation  upon  trial  and  punishment 
by  court-martial  shall  be  three  (3)  years  in  the  following 
cases  (A.  W.  39),  viz: 

(1)  Desertion  in  time  of  peace; 

(2)  Any  crime  or  offense  punishable  under  A.  W. 

93;  or 

(3)  Any  crime  or  offense  punishable  under  A.  W.  94. 

(c)  No  person  subject  to  military  law  shall  be  liable  to  be 
tried  or  punished  by  a  court-martial  for  any  crime  or  offense 
not  enumerated  in  subparagraph  (a)  or  subparagraph  (&), 
supra,  committed  more  than  two  (2)  years  before  the  ar- 
raignment of  such  person  (A.  W.  39). 

(d)  Computation  of  the  period  of  limitation. — The  point 
at  and  from  which  the  period  of  limitation  is  to  begin  to  run 
is  the  date  of  the  commission  of  the  offense.    The  point  at 
which  the  period  of  limitation  is  to  terminate  and  from 
which  said  period  is  to  be  reckoned  back  is  the  date  of 
arraignment  of  the  accused.    There  must  be  excluded  in  com- 
puting this  period — 

(1)  The  period  of  any  absence  of  the  accused  from 

the  jurisdiction  of  the  United  States;  and 

(2)  Any   period  during  which   by   reason   of  some 

manifest  impediment  the  accused  shall  not  have 
been  amenable  to  military  justice. 

NOTES. — M  Manifest  impediment "  means  only  such  impediments  as 
operate  to  prevent  the  court-martial  from  exercising  its  jurisdiction, 
and  includes  such  conditions  as  being  held  as  a  prisoner  of  war  in 
the  hands  of  tlte  enemy,  or  being  imprisoned  under  the  sentence  of  a 
civil  court  upon  conviction  of  crime  (In  re  Davison,  4  Fed.  Rep.,  5l6)  ; 
hut  any  concealment  of  the  evidence  of  their  guilt  or  other  like  fraud 
on  their  part  while  they  remain  within  the  jurisdiction  of  the  United 
States  by  which  the  prosecution  is  delayed  until  the  time  the  bar 
h/is  run  does  not  deprive  them  of  the  benefit  of  the  statute.  (14  Op. 
Atty.  Gten.,  268.) 


118 


COURTS-MARTIAL — PROCEDURE  DURING  TRIAL,  ^f  149 

The  thirty-ninth  article  of  war  does  not  have  the  effect  to  authorize 
trial  or  punishment  for  any  crime  or  offense  barred  by  the  provisions 
of  law  existing  at  the  date  of  its  taking  effect,  viz,  February  4,  1921. 

(3)  Limitation  as  to  Number  of  Trials. — (a)  No  person 
shall  be  tried  a  second  time  for  the  same  offense.  (A.  W.  40.) 

(5.)  A  person  subject  to  military  law  has  not  been  "  tried  " 
in  the  sense  of  A.  W.  49  in  any  of  the  following  cases : 

Where  the  party,  after  being  arraigned  or  tried  before  a 
court  which  was  illegally  constituted  or  composed,  or  was 
without  jurisdiction,  was  again  brought  to  trial  before  a 
competent  tribunal;  where  the  accused,  having  been  ar- 
raigned upon  and  having  pleaded  to  certain  charges,  was 
rearraigned  upon  a  new  set  of  charges  substituted  for  the 
others  which  were  withdrawn ;  where  one  of  the  several  dis- 
tinct charges  upon  which  the  accused  had  been  arraigned 
was  withdrawn  pending  the  trial,  and  the  accused,  after  a 
trial  and  finding  by  the  court  upon  the  other  charges,  was 
brought  to  trial  anew  upon  the  charge  thus  withdrawn; 
where,  after  proceedings  commenced,  hut  discontinued  with- 
out a  finding,  the  accused  was  brought  to  trial  anew  upon 
the  same  charge ;  where,  after  having  been  acquitted  or  con- 
victed upon  a  certain  charge  which  did  not  in  fact  state  the 
real  offense  committed,  the  accused  was  brought  to  trial  for 
the  same  act,  but  upon  a  charge  setting  forth  the  true  offense ; 
where  the  court  was  not  sworn;  where  the  first  court  was 
dissolved  because  reduced  below  five  members  by  the  casual- 
ties of  the  service  pending  the  trial;  where,  for  any  cause, 
without  fault  of  the  prosecution,  there  was  a  "mistrial," 
or  the  trial  first  entered  upon  was  terminated,  or  the  court 
dissolved,  .at  any  stage  of  the  proceedings  before  a  final  ac- 
quittal or  conviction  (Digest,  p.  167,  C,  II,  B)  ;  or,  in  any 
case,  until  either  an  acquittal  has  been  announced  in  open 
court,  or  else,  after  conviction,  the  reviewing  and,  if  there  be 
one,  the  confirming1  authority  shall  have  taken  final  action  upon 
the  case  (A.  W.  40),  i.  e.,  shall  have  ordered  execution  of  the 
sentence  or  dismissed  the  case.  As  to  new  trials  or  rehearings 
see  paragraphs  377  and  399,  infra. 

(c)  The  same  acts  constituting  a  crime  against  the  United 
States  can  not,  after  the  acquittal  or  conviction  of  the  ac- 


119 


Tf    149  CHAPTER  IX. 

cused  in  a  court  of  competent  jurisdiction,  be  made  the  basis 
of  a  second  trial  of  the  accused  for  that  crime  in  the  same 
or  in  another  court,  civil  or  military,  of  the  same  govern- 
ment. 

Although  the  same  act  when  committed  in  a  State  might 
constitute  two  distinct  offenses,  one  against  the  United 
States  and  the  other  against  the  State,  for  both  of  which  the 
accused  might  be  tried,  that  rule  does  not  apply  to  acts  com- 
mitted in  the  Philippine  Islands.  The  government  of  a 
State  does  not  derive  its  powers  from  the  United  States, 
while  that  of  the  Philippine  Islands  does  owe  its  existence 
wholly  to  the  United  States. 

A  soldier  in  the  Army,  having  been  acquitted  of  the  crime 
of  homicide,  alleged  to  have  been  committed  by  him  in  the 
Philippine  Islands,  by  a  military  court-martial  of  compe- 
tent jurisdiction  proceeding  under  authority  of  the  United 
States,  can  not  be  subsequently  tried  for  the  same  offense  in 
a  civil  court  exercising  authority  in  that  Territory.  (Graf- 
ton  v.  U.  S.,  206  U.  S.,  333.) 

A  similar  rule  applies  in  Alaska,  Hawaii,  Porto  Eico, 
the  Panama  Canal  Zone,  or  any  other  locality  where  the 
civil  courts  derive  their  authority  from  the  United  States. ' 

(d)  There  can  not  be  a  second  trial  where  the  offense  is 
really  the  same,  though  it  may  be  charged  under  a  different 
description  and  under  a  different  article  of  war.     Thus, 
where  the  Government  elects  to  try  a  soldier  under  A.  TV.  61 
for  absence  without  leave,  and  the  testimony  introduced 
develops  the  fact  that  the  offense  was  desertion,  the  accused, 
after  an  acquittal  or  a  finally  approved  conviction,  can  not 
legally  be  brought  a  second  time  to  trial  for  the  same  absence 
charged  as  desertion.     (Digest,  p.  169,  C,  II,  D.)     If  a  con- 
viction in  snch  a  case  should  be  disapproved  before  its  execution 
was  ordered,  the  accused  could  be  ordered  tried  for  desertion  as 
well  as  for  absence  without  leave  on  a  rehearing  of  the  case. 
(A.  W.  40,  47,  49,  50  J.) 

(e)  It  is  not  misrepresentation  or  concealment  by  an  ap- 
plicant for  enlistment,  but  the  procuring  of  his  enlistment 
by  means  of  misrepresentation  or  concealment,  together  with 
the  receipt  of  pay  or  allowances,  which  constitutes  the  mili- 


120 


COURTS  MARTIAL PROCEDURE  DURING   TRIAL,  ^f    150 

tary  offense  of  fraudulent  enlistment  under  A.  W.  54-. 
Therefore,  where  a  soldier  was  tried  for  and  convicted  of 
fraudulent  enlistment  in  procuring  his  enlistment  by  means 
of  a  misrepresentation  or  concealment,  to  try  him  again  for 
the  same  enlistment  on  account  of  another  misrepresentation 
or  concealment  subsequently  discovered  would  be  a  second 
trial  for  the  same  offense.  (Digest,  p.  169,  C,  II,  E,  1.) 

(/)  The  thirty-ninth  article  of  war  does  not  deprive  a 
court-martial  of  jurisdiction  of  an  offense  after  the  periods 
prescribed.  The  court  still  has  jurisdiction.  The  article 
gives  the  accused  a  right  of  exemption  from  trial  if  the 
accused  claims  the  exemption  and  proves  it.  In  other 
words,  the  exemption  from  trial  is  a  defense  that  the  accused 
must  assert  in  order  to  take  advantage  of  it.  The  defense 
may  be  made  by  entering  a  plea  in  bar,  or  it  may  be  made 
after  a  plea  of  not  guilty  by  introducing  evidence  showing 
the  facts  that  entitle  him  to  the  exemption. 

(g)  In  each  case  tried  by  general  court-martial  in  which, 
upon  the  face  of  the  record,  it  appears  that  the  accused 
might  successfully  plead  the  statute  of  limitations  but  in 
which  he  has  not  interposed  such  plea,  it  shall  be  made  to 
appear  of  record  that  the  president  of  the  court,  or  the  law 
member  advised  the  accused  of  his  legal  rights  in  the 
premises,  and  such  advice  of  the  president  or  law  member  and 
the  response  of  the  accused  thereto  will  appear  in  the  record. 
The  same  rule  will  apply  in  a  special  court-martial  in  any  case 
where  the  evidence  is  made  of  record. 

150.  PARDON. — A  pardon  is  an  act  of  the  President  which 
exempts  the  individual  on  whom  it  is  bestowed  from  the 
punishment  the  law  inflicts  for  a  crime  he  has  committed. 
(See  Words  and  Phrases,  vol.  6,  p.  5168,  and  authorities 
there  cited.) 

151.  CONSTRUCTIVE  CONDONATION. — Where  a  deserter  has 
been  restored  to  duty  without  trial  by  authority  competent 
to  order  his  trial,  this  action  is  regarded  as  a  constructive 
condonation  of  the  offense  and  may  be  pleaded  in  bar  of 
trial  subsequently  ordered;  unless  such  authority,  before  or 
at  the  time  of  such  restoration,  directed  that  he  remain  subject 
to  trial  for  the  offense. 


121 


If    152  CHAPTER  IX. 

152.  (a)  FORMER  PUNISHMENT. — Former  punishment, 
i.  e.,  that  he  has  already  been  punished  for  the  same  offense 
by  a  commanding  officer,  under  the  one  hundred  and  fourth 
article  of  war,  may  be  pleaded  in  bar  of  trial,  and,  if  proven, 
will  be  a  bar  to  further  proceedings.  But  such  punishment  is 
not  a  bar  to  trial  for  another  crime  or  offense  growing  out  of 
the  same  act  or  omission.  (A.  W.  104:  Grafton  v.  IT.  S.,  208 
U,  S.  333,  350-351.)  For  instance,  the  fact  that  the  accused 
had  been  so  punished  by  his  commanding  officer  for  reckless 
driving  resulting  in  a  collision  would  not  prevent  his  subsequent 
trial  for  involuntary  manslaughter  when  a  victim  of  the  accident 
afterwards  died. 

(b)  ILLEGAL  ENLISTMENT. — The   accused,   upon   arraign- 
ment, has  sometimes  pleaded  that  on  account  of  some  ille- 
gality in  his  enlistment,  as  that  he  was  under  age,  or  that  he 
was  enlisted  for  a  shorter  period  than  the  law  required,  etc., 
he  was  not  amenable  to  trial.     But  no  such  form  of  special 
plea  is  recognized  in  our  law.    If  the  accused,  by  reason  of 
his  invalid  enlistment,  is  not  duly  or  legally  in  the  Army, 
he  should  regularly  offer  the  facts  in  evidence  under  a  plea 
to  the  jurisdiction  or  bring  them  out  under  the  general  issue. 
(Winthrop,  p.  411.) 

(c)  RELEASE  FROM  ARREST. — Release  from  arrest  upon  the 
charges  and  restoration  to  duty  before  trial — already  no- 
ticed as  not  a  ground  for  a  plea  of  pardon  or  condonation — • 
is,  similarly,  no  ground  for  a  special  plea  in  bar  of  trial. 

(d)  OTHER  FORMS  OF  INADMISSIBLE  PLEAS. — Such  objec- 
tions  (which  have  been  taken  in  some  cases)   as  that  the 
accused,  at  the  time  of  the  arraignment,  is  undergoing  a  sen- 
tence of  general  court-martial;  or  that,  owing  to  the  long 
delay  in  bringing  him  to  trial,  he  is  "  unable  to  disprove  the 
charge  or  defend  himself";  or  that  his  accuser  is  actuated 
by  malice  or  is  a  person  of  bad  character,  are,  it  need  hardly 
be  said,  not  proper  subjects  for  special  pleas,  however  much 
they  may  constitute  ground  for  continuance,  or  affect  the 
questions  of  the  truth  or  falsity  of  the  charges,  or  of  the  meas- 
ure of  punishment.     So  as  to  all  such  objections  as  are 
properly  matters  of  defense  under  the  general  issue — for 


122 


COURTS-MARTIAL — PROCEDURE  DURING  TRIAL,  ^f  153 

example,  that  the  accused  committed  the  offense  charged 
when  insane,  or  intoxicated,  or  in  obedience  to  a  military 
order,  or  under  a  mistake  of  fact  or  law,  etc. — these  are  not 
within  the  scope  or  purpose  of  special  pleas  in  bar.  nor  can 
they  properly  be  raised  in  an  interlocutory  form,  or  other- 
wise than  upon  the  trial  and  by  the  testimony,  being,  as  they 
are,  of  the  very  substance  of  the  defense.  (Winthrop, 
p.  412.) 

153.  ACTION  UPON  SPECIAL  PLEAS. —  (a)  Each  special  plea 
should  be  stated  briefly  and  clearly.  It  must  also  be  sup- 
ported by  evidence  or  legal  argument  to  show  that  it  is  well 
taken.  The  burden  of  supporting  a  special  plea  by  a  pre- 
ponderance of  proof  rests  on  the  accused.  Both  sides  should 
be  heard  and  the  proceedings  and  arguments  under  the  plea 
in  trial  by  general  or  special  court-martial  recorded.  The 
accused  may  make  several  special  pleas  to  any  charge  or 
specification, 

{&)  When  a  special  plea  to  the  jurisdiction  or  in  bar  of 
trial  as  to  all  the  charges  and  specifications  has  been  sus- 
tained by  a  court,  the  record  of  the  proceedings  as  far  as  had 
will  be  forwarded  to  the  reviewing  authority  with  a  state- 
ment of  reasons  which,  in  the  opinion  of  the  court,  sustain 
its  action.  If  the  reviewing  authority  is  in  disagreement 
with  the  court  in  respect  of  the  validity  of  the  plea,  the 
proceedings  will  be  returned  by  him  to  the  court,  with 
reasons  for  such  disagreement  and  with  instructions  to  the 
court  to  reconvene  and  reconsider  its  action.  To  the  extent 
that  such  pleas  present  issues  of  law,  the  court  properly 
defers  to  the  views  of  the  reviewing  authority.  The  order 
returning  the  proceedings  for  reconsideration  should  direct 
the  court,  upon  vacating  its  prior  action,  to  proceed  with 
the  trial  of  the  case.  If  the  reviewing  authority  approves 
the  action  of  the  court  in  sustaining  such  pleas  his  action 
will  be  indorsed  on  the  proceedings  and  published  in  the 
final  review  of  the  case. 

{c)  If  the  charge  and  specification  to  which  a  special 
plea  has  been  sustained  are  not  capable  of  amendment  and 


123 


^f    154  CHAPTER  IX. 

there  are  other  charges  and  specifications  in  the  case,  the 
trial  may  proceed  on  the  other  charges  and  specifications. 
(G.  O.  28,  W.  D.,1905.) 

(d)  When  all  the  special  pleas  to  a  given  charge  or  speci- 
fication are  overruled,  the  accused  must  plead  to  the  general 
issue  as  to  that  charge  or  specification. 

154.  PLEAS  TO  THE  GENERAL  ISSUE. —  (a)  Usually  the  plea 
of  the  accused  is  "guilty"  or  "not  guilty"  to  each  charge 
and  specification ;  or,  guilty  to  a  specification  excepting  cer- 
tain words,  and  to  the  excepted  words  not  guilty;  or,  as 
when  charged  with  an  offense  which  includes  a  lesser  one  of 
a  kindred  nature,  guilty  to  the  specification  except  certain 
words,  substituting  therefor  certain  others,  to  the  excepted 
words  "not  guilty,"  to  the  substituted  words  "guilty,"  and 
to  the  charge  not  guilty,  but  guilty  of  the  lesser  included 
offense. 

(5)  A  court-martial  is  authorized,  in  any  case,  in  its  dis- 
cretion, to  permit  an  accused  to  withdraw  a  plea  of  not 
guilty  and  substitute  one  of  guilty,  and  vice  versa,  or  to 
withdraw  either  of  these  general  pleas  and  substitute  a  spe- 
cial plea.  And  wherever  the  accused  applies  to  be  allowed 
to  change  or  modify  his  plea,  the  court  should,  in  general, 
consent,  provided  the  application  is  made  in  good  faith  and 
not  for  the  purpose  of  delay. 

(c)  A  plea  of  guilty  does  not  exclude  the  taking  of 
evidence,  on  behalf  of  either  the  accused  or  the  prosecu- 
tion, or  at  the  request  of  the  court.  In  cases  where 
the  punishment  is  discretionary  a  full  knowledge  of  the 
circumstances  attending  the  offense  is  essential  to  the  court 
in  measuring  the  punishment  and  to  the  reviewing  author- 
ity in  acting  on  the  sentence.  In  cases  where  the  punish- 
ment is  mandatory,  a  full  knowledge  of  the  attendant  cir- 
cumstances is  necessary  to  the  reviewing  authority  to  enable 
him  to  comprehend  the  entire  case  and  correctly  judge 
whether  the  sentence  should  be  approved  or  disapproved  or 
clemency  granted.  The  court  should  therefore  take  evi- 
dence after  a  plea  of  guilty,  except  when  the  specification  is 
so  descriptive  as  to  disclose  all  the  circumstances  of  mitiga- 
tion or  aggravation.  When  evidence  is  taken  after  a  plea 


124 


COURTS-MARTIAL, — PROCEDURE  DURING  TRIAL.   If  154 

of  "guilty,"  the  witnesses  may  be  cross-examined,  evidence 
may  be  produced  to  rebut  their  testimony,  and  the  court 
may  be  addressed  by  the  prosecution  or  defense  on  the 
merits  of  the  evidence  and  in  extenuation  of  the  offense  or 
in  mitigation  of  punishment.  After  a  plea  of  guilty  the 
accused  will  always  be  given  an  opportunity  to  offer  evi- 
dence in  mitigation  of  the  offense  charged  if  he  desires  to 
do  so. 

NOTE. — It  is  only  in  very  rare  cases  that  the  specification  is  so  de- 
scriptive as  to  disclose  all  the  circumstances  of  mitigation  or  aggrava- 
tion. Therefore,  as  a  rule  the  court  will  direct  testimony  taken  after 
a  plea  of  guilty. 

(d)  In  each  case  tried  by  a  general  or  special  court-martial 
in  which  the  accused  enters  a  plea  of  guilty  in  whole  or  in 
part  as  to  any  charge  or  specification,  the  president  or  the 
law  member  of  the  court  (see  par.  89a,  supra)  shall  explain 
to  him  as  to  that  part : 

First.  The  various  elements  which  constitute  the  offense 
charged,  as  set  forth  in  Chapter  XVII,  concerning  the  puni- 
tive articles  of  war ;  and 

Second.  The  maximum  punishment  which  may  be  ad- 
judged by  the  court  for  the  offense  to  which  he  has  pleaded 
guilty. 

The  accused  will  then  be  asked  whether  he  fully  under- 
stands that  by  pleading  guilty  to  such  a  charge  or  specifica- 
tion he  admits  having  committed  all  the  elements  of  the 
crime  or  offense  charged  and  that  he  may  be  punished  as 
stated.  If  he  replies  in  the  affirmative,  the  plea  of  guilty 
will  stand;  otherwise  a  plea  of  not  guilty  will  be  entered. 
The  explanation  of  the  president  or  law  member  of  the  court 
and  the  reply  of  the  accused  thereto  shall  appear  in  the  record 
of  trial  by  a  general  court-martial.  The  same  rule  will  apply 
in  cases  tried  by  special  court-martial  when  the  evidence 
heard  is  made  of  record.  In  other  trials  by  special  court- 
martial,  the  fact  of  such  explanation  being  given  in  the  form 
prescribed  in  Appendix  9  to  this  Manual  will  be  noted  in  the 
record. 

NOTE. — For  the  form  of  such  explanation  see  Appendix  9. 


125 


^f    154  CHAPTER  IX. 

(e)  When  the  accused  pleads  "guilty.,"  and,  either  before 
or  after  such  plea,  at  any  time  before  the  sentence,  makes  a 
statement  or  gives  testimony  inconsistent  with  his  plea,  the 
statement  or  testimony  and  plea  will  be  considered  together, 
and  if  guilt  is  not  conclusively  admitted  the  court  will  pro- 
ceed to  trial  and  judgment  as  if  he  had  pleaded  "not  guilty." 
(A.  W.  21.)  The  most  frequent  instances  of  inconsistency 
are  in  cases  involving  a  specific  intent,  as  in  desertion,  lar- 
ceny, etc.  In  such  cases,  where  before  or  after  a  plea  of 
guilty  the  accused  at  any  time  before  the  sentence  makes  a 
statement,  or  gives  testimony,  the  latter  should  be  carefully 
scrutinized  by  the  court,  and  if  in  the  case  of  desertion  in 
any  part  there  is  a  statement  that  the  accused  had  no  inten- 
tion of  remaining  away;  that  he  expected  to  return  when 
he  had  earned  some  money ;  or  that  when  arrested  he  was  on 
his  way  back  to  his  organization,  etc. ;  or  that  (if  such  be  the 
desertion  alleged)  he  did  not  intend  to  avoid  hazardous  duty  or 
to  shirk  important  service;  or,  in  the  case  of  larceny,  that  he 
intended  to  return  the  property  alleged  to  have  been  stolen, 
etc.,  the  court  will  proceed  to  trial  and  judgment  as  if  he  had 
pleaded  "  not  guilty  "  (A.  W.  21) ;  but  the  criminality  of  an 
intent  once  formed  is  not  affected  by  a  subsequent  change  of 
intent. 

(/)  A  plea  of  "guilty  without  criminality"  is  irregular 
and  contradictory.  (Winthrop,  p.  414.)  It  is  practically 
equivalent  to  a  plea  of  "  not  guilty,"  and  the  court  and  trial 
judge  advocate  should  proceed  as  if  that  plea  were  entered. 
Unless  a  plea  of  guilty  is  unqualified  the  prosecution  must 
prove  all  allegations  that  are  not  specifically  admitted  by 
the  accused. 

(g)  Insanity  at  the  time  of  the  commission  of  the  acts 
charged  is  a  defense  which  may  be  properly  made  under  a 
plea  of  not  guilty.  Insanity  at  the  time  of  arraignment,  or 
at  a  later  stage  of  the  trial,  is  a  proper  ground  for  the  ar- 
rest of  further  proceedings  on  the  charges.  (See  par.  219 
infra.) 


128 


COUHTS-MARTIAL — PROCEDURE  DURING  TRIAL,  ^f    155 

SECTION  III. 
REFUSAL  TO  PLEAD. 

155.  ACTION. — When    the    accused,    arraigned    before    a 
court-martial,  fails  or  refuses  to  plead,  or  answers  foreign  to 
the  purpose,  or  when  it  appears  to  the  court  that  he  entered  a 
plea  of  guilty  improvidently  or  through  lack  of  understanding 
of  its  meaning  and  effect,  the  court  may  proceed  to  trial  and 
judgment  as  if  he  had  pleaded  not  guilty.     (A.  W.  21.)     If 
the  court  finds  that  the  failure  to  plead  is  the  result  of 
insanity,  it  will  proceed  as  indicated  in  Section  II,  para- 
graph 154  (#),  supra,  and  in  paragraph  219,  infra. 

SECTION  IV. 
MOTIONS  AND  OTHER  INCIDENTS  OF  THE  TRIAL. 

156.  MOTION  TO  SEVER. — A  motion  to  sever  is  a  motion  by 
one  of  two  or  more  joint  accused  to  be  tried  separately  from 
the  other  or  others.     It  will  regularly  be  made  at  the  ar- 
raignment.    Except  where  the  essence  of  the  charge  is  com- 
bination between  the  parties   (as  in  mutiny),  the  motion 
may  properly  be  granted  for  good  cause  shown.     The  more 
common  grounds  of  motions  for  severance   are  that  the 
mover  desires  to  avail  himself  on  his  trial  of  the  testimony 
of  one  or  more  of  his  coaccused,  or  of  the  testimony  of  the 
wife  of  one,  or  that  the  defenses  of  the  other  accused  are 
antagonistic  to  his  own,  or  that  the  evidence  as  to  them  will 
in  some  manner  prejudice  his  defense.     This  motion  has 
rarely  been  presented  to  the  court  in  our  military  practice. 
Where  the  prosecution  desires  to  use  one  of  two  or  more 
joint  accused  as  a  witness  against  another  or  others,  the 
practice  is  not  to  move  to  sever,  but,  by  order  of  the  con- 
vening authority,  to  withdraw  charges  as  to  such  one.     (See 
Winthrop,  p.  379,  and  authorities  there  quoted.) 

157.  MOTION  TO  ELECT. — The  prosecution  is  at  liberty  to 
charge  an  act  under  two  or  more  forms,  where  it  is  doubtful 
under  which  it  will  more  properly  be  brought  by  the  testi- 
mony.    In  the  military  practice  the  accused  is  not  entitled 


127 


If    158  CHAPTER  IX. 

to  call  upon  the  prosecution  to  "  elect "  under  which  charge 
it  will  proceed  in  such,  or  indeed  in  any,-  case.  (Digest,  p. 
504,  V,  F.) 

158.  NOLLE  PJROSEQUT. — A  nolle  prosequi  is  a  declaration 
of  record  on  the  part  of  the  prosecution  that  it  withdraws  a 
charge  or  specification  from  the  investigation  and  will  not 
pursue  the  same  further  at  the  present  trial.  This  authority 
can  only  be  exercised  by  the  superior  who,  as  the  representa- 
tive of  the  United  States,  ordered  the  court,  and  in  a  proper 
case  he  may,  on  his  own  initiative  or  on  application  duly 
made  to  him,  instruct  the  trial  judge  advocate  to  enter  a  nolle 
prosequi.  The  principal  grounds  for  this  proceeding  when 
duly  authorized  will  be — 

(a)  The  fact  that  the  charge  or  specification  is  dis- 
covered to  be  substantially  defective  and  in- 
sufficient in  law,  or 

(5)  That  it  is  ascertained  that  the  allegations  can  not 
be  proved,  or 

(c)  That  the  testimony  available  is  not  sufficient  to 

sustain  them,  or 

(d)  That  the  criminality  of  one  of  the  accused,  where 

there  are  several,  can  not  be  established,  or 

(e)  That  it  is  proposed  to  use  one  of  the  accused  as  a 

witness. 

The  withdrawal  of  such  a  charge  or  specification  is  not  in 
itself  equivalent  to  an  acquittal  or  to  a  grant  of  pardon  and 
can  not  be  so  pleaded.  It  simply  removes  from  the  pending 
case  a  particular  charge  or  specification  without  prejudice 
to  its  being  subsequently  renewed  in  its  original  or  a  re- 
vised form.  In  court-martial  practice  when  authorized  by 
the  appointing  authority  a  nolle  prosequi  may  be  entered 
either  before  or  after  arraignment  and  plea.  If  after  ar- 
raignment it  is  found  that  a  charge  or  specification  can  not 
be  sustained  or  it  is  determined  for  other  reasons  that  the 
same  shall  not  be  pursued,  while  it  would  be  legal  to  enter 
a  nolle  prosequi  thereto  (see  form,  Appendix  10),  it  will  be 
the  preferable  course  as  well  as  most  just  to  the  accused 
not  to  do  so,  but  to  allow  the  accused  to  be  formally 
acquitted  thereon  at  the  finding.  (See  Winthrop,  pp. 

369-371.) 

128 


•  COURTS-MARTIAL — PROCEDURE  DURING  TRIAL,  ^f  158a 

158a.  Aider  of  Defective  Specification. — If  a  specification, 
while  defective  because  of  failure  to  allege  some  particular  fact 
or  element  essential  to  the  offense,  nevertheless  contains  suffi- 
cient  fairly  to  apprise  the  accused  of  the  offense  intended  to  be 
charged,  then,  if  at  the  time  of  arraignment,  there  be  no  objec- 
tion to  the  specification  on  the  ground  of  such  omission,  and  if 
either  (1)  the  accused  pleads  not  guilty  thereto  and  the  record 
shows  that  the  omitted  fact  or  element  has  been  proved  at  the 
trial  without  objection  by  the  defense,  or  (2),  upon  the  accused's 
plea  of  guilty  to  such  specification,  the  president  (or  the  law 
member  of  a  general  court)  explains  to  the  accused  the  various 
elements  which  constitute  the  offense  charged  therein  in  accord- 
ance with  the  requirements  of  paragraph  154d,  supra,  and  in  such 
explanation  states  and  includes  such  omitted  fact  or  element  as 
one  of  the  elements  of  the  crime  or  offense  charged,  which  the 
accused,  by  pleading  guilty  to  such  specification,  admits  having 
committed,  then,  in  either  such  case,  a  finding  of  guilty  will  cure 
such  defect  in  the  specification,  and  neither  the  finding  nor  sen- 
tence need  be  disapproved  by  reason  of  such  defect;  unless  it 
appears  from  the  record  that  the  accused  was  in  fact  misled  by 
sucn  failure,  or  that  his  substantial  rights  were  in  fact  other- 
wise injuriously  affected  thereby;  or  unless  the  existence  of 
such  omitted  fact  or  element  is  negatived  by  the  language  of 
the  defective  specification  or  by  the  language  of  some  other 
specification. 

If,  at  the  arraignment,  or  at  any  time  during  the  trial,  the 
accused  objects  to  the  sufficiency  of  the  specification  on  the 
ground  of  the  omission  therefrom  of  such  essential  fact  or  ele- 
ment, or  objects  to  evidence  offered  as  to  such  omitted  fact  or 
element,  on  the  ground  that  it  is  not  alleged  in  the  specification, 
or  in  case  such  defect  is  brought  to  the  attention  of  the  court 
in  any  other  manner,  the  court  will  either  (1)  direct  that  speci- 
fication to  be  stricken  out  and  disregarded,  or  else  (2)  the  court 
may,  in  its  discretion,  either  on  motion  of  the  trial  judge  advo- 
cate or  upon  its  own  motion,  continue  the  case  to  allow  the  trial 
judge  advocate  to  apply  to  the  convening  authority  for  direc- 
tions as  to  further  proceedings  in  the  case  (see  par.  158d,  infra), 
or  may  (3)  permit  the  specification  to  be  so  amended  as  to  cure 
such  omission,  and  continue  the  case  for  such  time,  as  in  the 
21358°— 20 9 

129 


^f    158b  CHAPTER  IX. 

opinion  of  the  court  may  suffice  to  enable  the  accused  properly 
to  prepare  his  defense  in  view  of  the  amendment  (provided, 
however,  that  the  court  may  proceed  immediately  with  the  trial 
upon  such  amendment  being  made,  if  it  clearly  appears  from  all 
the  circumstances  before  the  court  that  the  accused  has  not  in 
fact  been  misled  in  the  preparation  of  his  defense,  and  that  a  con- 
tinuance is  not  necessary  for  the  protection  of  his  substantial 
rights) . 

158b.  Variance. — If  at  any  time  during  the  trial  it  appears 
to  the  court  that  the  evidence  as  to  any  specification  or  charge 
is  not  legally  sufficient  to  sustain  a  finding  of  guilty  thereof  or 
of  any  lesser  included  offense  thereunder,  but  that  there  is  sub- 
stantial evidence,  either  before  the  court  or  offered,  tending  to 
prove  the  guilt  of  the  accused  of  some  other  offense  not  alleged 
in  any  specification  or  charge  before  the  court,  the  court  may  in 
its  discretion,  instead  of  proceeding  with  the  trial  upon  the  plead- 
ings as  they  stand,  either — 

1.  Direct  that  the  specification  or  charge  in  question  be 

stricken  out  and  disregarded;  or 

2.  Continue  the  case  pending  an  application  by  the  trial 

judge  advocate  to  the  convening  authority  for  direc- 
tions as  to  further  proceedings  in  the  case.     (See 

par.  158d,  infra.) 

158c.  Finding  of  Not  Guilty  at  the  Close  of  the  Case  for  the 
Prosecution. — Upon  the  close  of  the  case  for  the  prosecution  and 
before  the  opening  of  the  case  for  the  defense,  or  the  introduc- 
tion of  any  evidence  for  the  defense  or  statement  by  the  ac- 
cused, or  at  any  time  thereafter  during  the  trial,  before  the 
close  of  the  evidence,  the  court  may,  either  upon  its  own  motion 
or  upon  the  suggestion  of  the  trial  judge  advocate  or  upon  sug- 
gestion or  motion  by  the  accused  or  his  counsel,  consider  whether 
the  evidence  introduced  by  the  prosecution,  or  before  the  court, 
is  legally  sufficient  to  support  a  finding  of  guilty,  either  as  to 
all  of  the  specifications  and  charges  before  the  court,  or  as  to 
any  particular  one  or  more  thereof.  And  if  it  thereupon  appears 
to  the  court  that  the  evidence  then  before  the  court  in  favor  of 
the  prosecution,  if  that  most  favorable  to  the  prosecution  should 
all  be  accepted  as  true  (regardless  of  any  question  of  veracity 
of  the  witnesses  or  of  the  chances  of  its  being  successfully  con- 


130 


COURTS- MARTIAL — PROCEDURE  DURING  TRIAL,  ^f  158d 

troverted  or  explained  by  the  defense)  with  all  the  inferences  in 
favor  of  the  prosecution  that  may  reasonably  be  drawn  there- 
from, is  not  legally  sufficient  to  sustain  the  specifications  and 
charges,  or  any  particular  one  or  more  thereof  (that  is,  if  there  is 
no  substantial  evidence  fairly  tending  to  prove  each  of  the  essen- 
tial facts  and  elements  therein  alleged),  then,  in  any  such  case, 
the  court  may  in  its  discretion  forthwith  direct  and  announce  in 
open  court  a  finding  of  not  guilty,  either  of  all  the  specifications 
and  charges,  or  of  such  particular  specifications  or  charges,  if 
any,  as  the  court  shall  so  find  not  to  be  supported  by  legally  suffi- 
cient evidence,  Every  such  question  will  be  determined  purely 
as  a  question  of  law,  without  any  consideration  of  the  weight  of 
the  evidence  before  the  court  or  any  part  thereof;  and  such  ques- 
tion will  be  determined,  in  the  first  instance,  by  the  law  member 
of  the  court,  if  any,  or  if  there  be  no  law  member  of  the  court, 
or  he  be  not  present,  then  by  the  president,  by  his  ruling  in  open 
court  upon  the  question  (A.  W.  31) ;  but  if  any  member  of  the 
eourt  object  to  such  ruling  the  court  will  be  cleared  and  closed 
and  the  question  decided  by  a  majority  vote  by  secret  ballot,  as 
provided  by  the  thirty-first  article  of  war;  but  a  denial  of  such 
motion  shall  never  be  regarded  as  ground,  in  itself,  of  disapprov- 
ing a  finding  or  sentence. 

158d.  CONVENING  AUTHORITY. —  ACTION  WHEN  COURT- 
MARTIAL  REQUESTS  DIRECTIONS, — Whenever  a  trial  judge 
advocate,  by  the  directions  of  a  court-martial,  under  the  pre- 
visions of  paragraph  158a  or  of  paragraph  158b,  supra,  or 
under  any  other  paragraph  of  this  Manual,  or  otherwise,,  applies 
to  the  convening  authority  for  directions  as  to  further  proceed- 
ings in  a  case,  the  convening  authority  will  refer  the  matter  to 
his  staff  judge  advocate  for  consideration  and  advice,  who  will 
report  to  him  thereon  in  accordance  with  the  provisions  of  para- 
graph 76b,  supra,  The  convening  authority  will  thereupon  take 
such  action  as  may  appear  to  Mm  to  be  proper  under  the  cir- 
cumstances of  the  case. 


131 


CHAPTER  X. 

COURTS-MARTIAI^-WITNESSES  AND 
DEPOSITIONS. 


Section  I:  Attendance  of  witnesses:  Page. 

159.  Process  to  obtain  witnesses 133 

160.  Service   of  subpoena 134 

161.  Summoning  of  witnesses 134 

162.  Advance  notice  to  witnesses 135 

163.  Attendance  of  military  witnesses 135 

164.  Procedure  to  secure  attendance  of  civilian  witness 135 

165.  When  accused  must  be  confronted  with  witness •_  136 

166.  Procedure  to  obtain  books,  documents,  or  papers 137 

167.  Civilian  witness  in  confinement 137 

168.  Warrant  of  attachment. 137 

169.  Habeas  corpus  proceedings  in  connection  with  attach- 

ments    138 

170.  Punishment  for  refusal  to  appear  or  testify 139 

171.  Same  in  Philippine  Islands 140 

172.  Tender  of  fees  preliminary  to  prosecution 141 

173.  Contempts 141 

(a)  Authority  to  punish 141 

(&)  Persons  who  may  be  punished  for  contempt 141 

(c)  Direct  and  constructive  contempts 142 

(d)  Procedure 142 

Section  II:  Depositions: 

174.  When  admissible 143 

174a.  Depositions  upon  oral  interrogatories 143 

175.  Before  whom  taken 143 

176.  Interrogatories,  how  submitted 144 

177.  Procedure  to  obtain   deposition 144 

178.  Tracing   delayed    depositions 146 

179.  Designation  of  deponent  by  official  title 146 

180.  Deponent's  answers  to  be  responsive 146 

181.  Fees  for  taking  depositions 146 

181J.  Depositions  upon  oral  interrogatories — Procedure 146 

182.  Taking  depositions  in  foreign  country 148 

Section  III :  Fees,  mileage,  and  expenses  of  witnesses : 

183.  Officers  and  soldiers,  active  or  retired 149 

184.  Civilians  in  Government  employ 149 

185.  Civilians  not  in  Government  employ 150 

186.  Payment  for  return  journey 151 


132 


COURTS-MARTIAL — WITNESSES  AND  DEPOSITIONS,  ^f  159 

Section  III,  Fees,  mileage,  and  expenses  of  witnesses — Contd.  Page. 

187.  Contents  of  vouchers 151 

188.  Witness  in  several  trials  on  same  day 151 

189.  Voucher  to  be  delivered  to  witness 151 

190.  Lost    voucher 152 

191.  Fees  for  service  of  subpoanas 152 

192.  Employment  of  experts 152 

193.  Expenses  of  courts-martial,  etc.,  how  payable 152 


SECTION  I. 
ATTENDANCE  OF  WITNESSES. 

159.  PROCESS  TO  OBTAIN  WITNESSES. — Every  trial  judge 
advocate  of  a  general  or  special  court-martial  and  every 
summary  court-martial  shall  have  power  to  issue  the  like 
process  to  compel  witnesses  to  appear  and  testify  which 
courts  of  the  United  States  having  criminal  jurisdiction  may 
lawfully  issue ;  but  such  process  shall  run  to  any  part  of  the 
United  States,  its  Territories,  and  possessions.  (A.  W.  22.) 
The  authority  to  issue  such  process  is  in  terms  vested  solely 
in  the  trial  judge  advocate  of  a  general  or  special  court- 
martial  and  in  a  summary  court-martial,  and  it  is  by  them 
alone  that  the  process  can  be  initiated.  The  trial  judge 
advocate,  however,  will  sometimes  properly  consult  the  court 
as  to  the  desirability  of  resorting  to  an  attachment,  espe- 
cially where  any  considerable  time  may  be  required  for  the 
service  and  return  of  the  same,  and  an  unusual  adjournment 
may  thus  be  necessitated.  He  will  also  properly  resort  to 
it  whenever  the  court  in  its  desire  to  secure  the  best  or  mate- 
rial evidence  not  otherwise  procurable  calls  upon  him  for  the 
purpose.  (Winthrop,  p.  298.) 

It  is  the  duty  of  the  trial  judge  advocate  to  issue  process  to 
compel  the  attendance  of  witnesses  desired  on  behalf  of  the  de- 
fense upon  the  request  of  the  defense  counsel  or  of  other  counsel 
for  the  accused,  but  he  may  properly  consult  the  court  as  to  the 
desirability  of  resorting  to  an  attachment  for  such  purposes 
where  any  considerable  time  may  be  required  for  the  service 
and  return  of  the  same  and  an  unusual  adjournment  may  thus  be 
necessitated,  if  the  evidence  desired  by  the  accused  can  be  ob- 

133 


*[    160  CHAPTER  X. 

tained  in  another  manner,  or  if  the  trial  judge  advocate  is  will- 
ing to  admit  that  the  absent  witness  or  witnesses,  if  present, 
would  testify  as  stated  by  the  accused.  (See  par.  140,  supra.) 

NOTE  1. — For  power  to  issue  process  to  secure  the  attendance  and 
testimony  of  witnesses  before  courts-martial  in  the  National  Guard 
not  in  the  service  of  the  United  States,  see  section  108,  National 
Defense  Act  of  June  3,  1916,  39  Stat.  209,  Appendix  2. 

2.  Wherever  in   this  section  reference  is  made  to   issue  of  such 
process  by  a  trial  judge  advocate,  a  summary  court-martial  will  be 
understood  to  be  included. 

3.  An  admission  that  an  absent  witness  would,  if  present,  testify  in 
a  particular  manner  does  not  admit  the  fact  to  be  as  the  witness  would 
testify.    The  admission  simply  stands  in  the  place  of  the  testimony  of 
the  witness  and  may  be  attacked  or  contradicted  or  explained  in  the 
same  way  as  though  the  witness  had  been  sworn  and  had  testified  to 
the  tilings  covered  by  the  admission. 

4.  The  admission  of  the  truth  of  a  statement  or  of  the  existence  of 
a  fact  is  a  wholly  different  thing. 

160.  SERVICE  OF  SUBPOENA. — A  subpoena  for  the  attend- 
ance of  a  civilian  witness  is  issued  in  duplicate.     It  may  be 
legally  served  by  either  a  person  in  the  military  service  or 
a  civilian.     Usually  service  is  made  by  an  officer  or  noncom- 
missioned officer.    Service  is  made  by  personal  delivery  of 
one  of  the  -copies  to  the  witness.     The  proof  of  service  is 
made  by  indorsing  on  the  remaining  copy  a  sworn  statement 
that  service  was  made.     (For  service  by  mail  and  accept- 
ance of  same,  see  par.  161,  infra.)     After  making  service  a 
copy  of  the  subpoena  will  be  promptly  returned  to  the  trial 
judge  .advocate  of  the  court  with  the  proof  of  service.     If 
the  witness  can  not  be  found,  the  trial  judge  advocate  should 
be  promptly  so  informed.     A  trial  judge  advocate  can  not 
subpoena  a  civilian  witness  to  appear  before  himself  for  pre- 
liminary examination. 

NOTE. — For  form  and  subpoena  and  proof  of  service,  see  Appendix  19. 

161.  SUMMONING  OF  WITNESSES. — The  trial  judge  advo- 
cate will  summon  the  necessary  witnesses  for  the  trial,  but 
will  not  summon  witnesses  at  the  expense  of  the  Govern- 
ment without  the  order  of  the  court,  unless  satisfied  that 
their  testimony  is  material  and  necessary.     In  order  that 
the  accused  may  not  be  denied  a  full  opportunity  to  make 


134 


COURTS-MARTIAL — WITNESSES  AND  DEPOSITIONS.  If  162 

his  defense  any  witness  requested  by  him  is  usually  sum- 
moned, and  any  witness  designated  by  the  defense  counsel  of  a 
general  or  special  court-martial  will  be  summoned.  But  a 
reasonable  discretion  should  be  exercised  by  the  defense  coun- 
sel where  the  summoning  of  the  number  of  witnesses  re- 
quested by  the  accused  or  by  individual  counsel  would  result  in 
an  unreasonable  inconvenience  or  expense  to  the  Govern- 
ment. In  such  instances  the  defense  counsel  should  ascertain 
whether  the  testimony  required  of  the  witness  is  not  merely 
cumulative,  or  as  to  an  unimportant  point  that  one  or  two 
witnesses  would  be  sufficient  to  render  conclusive,  or  as  to 
which  the  trial  judge  advocate  will  consent  to  admit  the 
facts  expected  from  the  witness's  testimony. 

162.  ADVANCE  NOTICE  TO  WITNESSES. — The  trial  judge  ad- 
vocate will  endeavor  to  issue  subpoenas  to  civilian  witnesses 
and  to  make -request  for  the  attendance  of  military  witnesses 
at  such  time  as  will  give  each  witness  at  least  24  hours' 
notice  before  starting  to  attend  the  meeting  of  the  court. 

163.  ATTENDANCE  OF  MILITARY  WITNESSES. — The  attend- 
ance of  persons  in  the  military  service  stationed  at  the  place 
of  meeting  of  the  court,  or  so  near  that  no  expense  of  trans- 
portation will  be  involved,  will  ordinarily  be  obtained  by 
informal  notice  served  by  the  trial  judge  advocate  on  the 
person  concerned  that  his  attendance  as  a  witness  is  desired. 
If  for  any  reason  formal  notice  is  required,  the  trial  judge 
advocate   will    request   the   proper   commanding   officer  to 
order  him  to  attend,  but  if  mileage  is  involved  the  area  or 
department  commander  or  other   proper  superior  will  be 
requested  to  issue  the  necessary  order.    Fees  will  not  be  paid 
to  military  witnesses  on  the  active  list,  and  they  are  entitled 
only  to  the  mileage  allowances  due  them  under  their  travel 
orders.     The  attendance  as  witnesses  of  persons  on  the  re- 
tired list  (not  assigned  to  active  duty)  should  be  obtained 
in  the  same  manner,  and  they  are  entitled  to  the  same  fees 
and  mileage  as  civilian  witnesses  not  in  the  Government  em- 
ploy.   No  travel  order  will  be  issued  in  such  cases. 

164.  PROCEDURE  TO  SECURE  ATTENDANCE  OF  CIVILIAN  WIT- 
NESS.— Unless  he  has  reason  to  believe  that  a  formal  service 
of  subpoena  will  be  required,  the  trial  judge  advocate  will 


135 


^[    165  CHAPTER  X. 

endeavor  to  secure  the  attendance  of  a  civilian  witness  by 
correspondence  with  him,  sending  him  duplicate  subpoana 
properly  filled  out,  with  a  request  to  accept  service  on  one 
by  signing  the  printed  statement,  "I  hereby  accept  service 
of  the  above  subpoena,"  and  to  return  same  to  the  trial 
judge  advocate,  for  which  purpose  a  return  addressed  pen- 
alty envelope  should  be  inclosed.  Ordinarily  there  will  be 
no  difficulty  in  securing  the  voluntary  attendance  of  a  civil- 
ian witness  if  he  is  informed  that  his  fees  and  mileage  will 
not  be  reduced  by  reason  of  his  voluntary  attendance  and 
that  a  voucher  for  his  fees  and  mileage  going  to  and  return- 
ing from  the  place  of  the  sitting  of  the  court-martial  will 
be  delivered  to  him  promptly  on  being  discharged  from 
attendance  on  the  court.  If  such  informal  methods  are  in- 
effective, formal  duplicate  subpo3na  will  be  issued  by  the 
trial  judge  advocate  with  a  view  to  service  on  the  witness. 
If  the  witness  is  at  or  near  the  post  where  the  court  is  sit- 
ting, the  service  will  be  by  the  trial  judge  advocate  or  by 
some  person  designated  by  him.  If  the  witness  is  not  at 
or  near  the  post  where  the  court  is  sitting,  but  is  at  or  near 
another  military  post,  command,  or  detachment,  the  trial 
judge  advocate  will  send  the  duplicate  subpoena  direct  to  the 
commanding  officer  of  such  post,  command,  or  detachment, 
requesting  service  of  the  same.  Upon  receipt  of  the  request 
the  officer  receiving  it  will  serve  the  subpoena  or  cause  it  to 
be  served.  The  service  will  be  made  without  delay,  and  the 
retained  copy  of  the  subpoena,  with  proof  of  service  indorsed 
on  it,  will  be  sent  at  once  direct  to  the  trial  judge  advocate. 
If  in  any  instance  travel  is  necessary  to  serve  the  subpoena, 
a  request  will  promptly  be  made  by  the  commanding  officer 
of  the  post,  command,  or  detachment  on  the  proper  author- 
ity for  travel  orders.  If  the  witness  does  not  reside  near  a 
post,  command,  or  detachment,  the  subpoena  will  be  sent 
direct  to  the  area  or  department  or  other  proper  commander 
requesting  service  of  the  same.  (See  par.  159,  notes,  supra.) 

165.  WHEN  ACCUSED  MUST  BE  CONFRONTED  WITH  WIT- 
NESS.— Depositions  can  not  be  introduced  by  the  prosecution 
in  capital  cases.  (A.  W.  25.)  (As  to  what  are  capital  cases, 
see  par.  41,  supra.)  In  such  cases,  therefore,  as  well  as  in 


136 


COURTS-MARTIAL WITNESSES  AND  DEPOSITIONS.  *[j  166 

others  in  which  the  trial  judge  advocate  or  the  defense  counsel 
believes  that  the  interests  of  justice  demand  that  the  accused 
be  confronted  by  a  witness  against  him,  or  believes  that  for 
any  reason  a  witness  should  testify  in  the  presence  of  the 
court,  the  trial  judge  advocate  will  take  the  necessary  steps  to 
secure  the  attendance  of  such  witness  or  witnesses. 

NOTE. — A  case  referred  to  a  special  court-martial  for  trial,  under 
the  provisions  of  the  last  proviso  of  A.  W.  12  as  amended  by  the  code 
of  1920,  is  not  a  "  capital  case  "  within  the  meaning  of  this  paragraph, 
since  a  special  court-martial  has  no  power  to  impose  the  death 
penalty. 

166.  PROCEDURE     TO     OBTAIN     BOOKS,     DOCUMENTS,     OR 
PAPERS. — If  a  civilian  has  in  his  possession  a  book,  docu- 
ment, or  paper  desired  to  be  introduced  in  evidence,  a  sub- 
poena duces  tecum  will  be  prepared  and  issued  by  the  trial 
judge  advocate  directing  the  person  to  appear  in  court  and 
to  bring  with  him  such  book,  document,  or  paper,  which 
should  be  described  in  sufficient  detail  to  enable  it  to  be 
readily  identified. 

NOTE. — For  form,  see  Appendix  19. 

167.  CIVILIAN  WITNESS  IN  CONFINEMENT. — The  testimony 
of  a  witness  who  is  in  confinement  in  the  hands  of  the  civil 
authorities  will  ordinarily  be  obtained  by  means  of  a  depo- 
sition (A.  W.  25),  but  if  for  any  reason  it  is  necessary  that 
such  a  witness  testify  in  court,  an  endeavor  should  be  made 
by  the  trial  judge  advocate  to  make  arrangements  with  the 
civil  authorities  to  obtain  his  appearance. 

168.  WARRANT  OF  ATTACHMENT. — In  view  of  the  provi- 
sions of  A.  W.  23  providing  for  the  punishment  on  informa- 
tion before  a  district  court  of  the  United  States  or  in  a  court 
of  original  criminal  jurisdiction  in  any  of  the  territorial 
possessions  of  the  United  States  of  a  civilian  who  willfully 
neglects  or  refuses,  after  he  has  been  duly  subpoenaed,  to  ap- 
pear as  a  witness  before  any  military  court,  commission, 
court  of  inquiry,  or  board,  or  before  any  officer,  military  or 
civil,  designated  to  take  a  deposition  to  be  read  in  evidence 
before  such  court,  commission,  court  of  inquiry,  or  board,  cir- 
cumstances requiring  the  issue  of  a  warrant  of  attachment 
will  be  very  rare.     (For  form,  see  Appendix  20.)     When- 


137 


If    169  CHAPTER  X. 

ever  it  becomes  necessary  to  issue  a  warrant  of  attachment, 
the  trial  judge  advocate  or  summary  court-martial  will 
direct  or  deliver  it  for  execution  to  an  officer  designated 
by  the  area  or  department  commander  for  the  purpose.  (12 
Op.  Atty.  Gen.,  501.)  As  the  arrest  of  a  person  under  a  war- 
rant ol  attachment  involves  depriving  him  of  his  liberty,  the 
authority  for  such  action  may  be  inquired  into  by  a  writ  of 
habeas  corpus.  For  this  reason  the  officer  executing  the  war- 
rant of  attachment  should  be  provided  with  the  following 
papers  to  enable  him  to  make  a  full  return  in  case  a  writ  of 
habeas  corpus  is  served  upon  him : 

(a)  A  copy  of  the  charges  in  the  case,  sworn  to  be  a  full 
and  true  copy  of  the  original  by  the  trial  judge  advocate  of 
the  court  (or  summary  court-martial). 

(b)  A  copy  of  the  order  appointing  the  court-martial, 
sworn  to  be  a  full  and  true  copy  of  the  original  by  the  trial 
judge  advocate  of  the  court  (or  summary  court-martial). 

(c)  A  copy  of  the  order  referring  the  charges  to  the  court  for 
trial,  sworn  to  be  a  full  and  true  copy  of  the  original  by  the  trial 
judge  advocate  (or  summary  court-martial). 

(d)  The  original  subpoena,  showing  proof  of  service  of 
same. 

(e)  An  affidavit  of  the  trial  judge  advocate  or  summary 
court-martial  that  the  person  being  attached  is  a  material 
witness  in  the  case;  that  he  has  failed  and  neglected  to 
appear,  although  sufficient  time  has  elapsed  for  that  pur- 
pose; and  that  no  valid  excuse  has  been  offered  for  such 
failure  to  appear. 

(/)  The  original  warrant  of  attachment. 

In  executing  such  process  it  is  lawful  to  use  only  such 
force  as  may  be  necessary  to  bring  the  witness  before  the 
court.  Whenever  force  is  actually  required,  the  post  com- 
mander nearest  the  residence  of  the  witness  will  furnish  a 
military  detail  sufficient  to  execute  the  process. 

169.  HABEAS  CORPUS  PROCEEDINGS  IN  CONNECTION  WITH 
ATTACHMENTS. — (a)  If,  in  executing  a  warrant  of  attach- 
ment, the  officer  detailed  for  that  purpose  should  be  served 
with  a  writ  of  habeas  corpus  from  any  United  States  court, 
or  by  a  United  States  judge,  for  the  production  of  the  wit- 


138 


COURTS-MARTIAL WITNESSES  AETD  DEPOSITIONS.  <j[  170 

ness,  the  writ  will  be  promptly  obeyed,  and  the  person  alleged 
to  be  illegally  restrained  of  his  liberty  will  be  taken  before 
the  court  from  which  the  writ  has  issued  and  a  return  made 
setting  forth  the  reasons  for  his  restraint.  The  officer  upon 
whom  such  a  writ  is  served  will  at  once  report  by  telegraph 
the  fa<;t  of  such  service  direct  to  The  Adjutant  General  of 
the  Army  and  to  the  commanding  general  of  the  division, 
force,  area,  or  department.  (See  Appendix  22,  Form  A.) 

(b)  If,  however,  the  writ  of  habeas  corpus  is  issued  by 
any  State  court  (or  a  State  judge),  it  will  be  the  officer's 
duty  to  make  respectful  return,  in  writing,  informing  the 
court  that  he  holds  the  person  named  in  the  writ  by  author- 
ity of  tho  United  States  pursuant  to  a  warrant  of  attach- 
ment issued  under  Chapter  II  of  the  act  of  Congress  approved 
June  4,  1920  (A.  W.  22),  by  a  trial  judge  advocate  of  a  law- 
fully convened  -  general  or  special  court-martial  (or  by  a 
summary  court-martial),  and  that  the  Supreme  Court  of 
the  United  States  has  decided  that  State  courts  and  judges 
are  without  jurisdiction  in  such  cases.  (See  Appendix  22, 
Form  B.)  After  having  made  the  above  return  to  a  writ 
issued  by  a  State  court  or  judge,  it  is  the  duty  of  the  officer 
to  hold  the  prisoner  in  custody  under  his  warrant  of  attach- 
ment and  to  refuse  obedience  to  the  mandate  or  process  of 
any  government  except  that  of  the  United  States.  Conse- 
quently, it  is  his  duty  not  to  take  the  prisoner,  nor  suffer 
him  to  be  taken,  before  a  State  judge  or  court  upon  a  writ  of 
habeas  corpus  issued  under  State  authority. 

170.  PUNISHMENT  FOR  KEFUSAL  TO  APPEAR  OR  TESTIFY. — 
Although  the  attendance  of  a  witness  as  above  described  can 
be  enforced,  there  is  no  power  in  a  court-martial  itself  to 
compel  a  witness  to  testify  or  to  punish  him  for  not  testify- 
ing. The  only  procedure  is  that  provided  in  A.  W.  23,  as 
follows : 

Every  person  not  subject  to  military  law,  who  being  duly 
subpoenaed  to  appear  as  a  witness  before  (a)  any  military 
court,  commission,  court  of  inquiry,  or  board,  or  (&)  any 
officer,  military  or  civil,  designated  to  take  a  deposition  to 
be  read  in  evidence  before  such  court,  commission,  court  of 
inquiry,  or  board,  willfully  (a)  neglects  or  refuses  to  appear, 


139 


If    171  CHAPTER  X. 

or  (b)  refuses  to  qualify  as  a  witness  or  to  testify,  or  (c) 
produce  documentary  evidence  which  such  person  may  have 
been  legally  subpoenaed  to  produce,  shall  be  deemed  guilty  of 
a  misdemeanor,  for  which  such  person  shall  be  punished  on 
information  in  the  district  court  of  the  United  States,  or  in 
a  court  of  original  criminal  jurisdiction  in  any  of  the  Ter- 
ritorial possessions  of  the  United  States,  jurisdiction  being 
hereby  conferred  upon  such  courts  for  such  purpose;  and 
it  shall  be  the  duty  of  the  United  States  district  attorney  or 
the  officer  prosecuting  for  the  Government  in  any  such  court 
of  original  criminal  jurisdiction,  on  the  certification  of  the 
facts  to  him  by  the  military  court,  commission,  court  of  in- 
quiry, or  board,  to  file  an  information  against  and  prosecute 
the  person  so  offending,  and  the  punishment  of  such  person, 
on  conviction,  shall  be  a  fine  of  not  more  than  $500,  or  im- 
prisonment not  to  exceed  six  months,  or  both,  at  the  discre- 
tion of  the  court:  Provided,  That  the  .fees  of  such  witness 
and  his  mileage,  at  the  rates  allowed  to  witnesses  attending 
the  courts  of  the  United  States,  shall  be  duly  paid  or  ten- 
dered said  witness,  such  amounts  to  be  paid  out  of  the  appro- 
priation for  the  compensation  of  witnesses.  (A.  W.  23.) 

NOTE. — If  an  officer  who  is  charged  with  serving  a  subpoena  pays  the 
necessary  fees  and  mileage  to  a  witness,  taking  a  receipt  therefor,  he 
is  entitled  to  reimbursement.  (Dec.  Comp.  Treas.,  Sept.  10,  1901,  pub- 
lished in  Cir.  38,  A.  G.  O.  1001.) 

171.  SAME  IN  PHILIPPINE  ISLANDS. — Every  person  not  be- 
longing to  the  Army  of  the  United  States,  who,  in  the  Philip- 
pine Islands,  being  duly  subpoenaed  to  appear  therein  as  a 
witness  before  a  general  court-martial  of  said  Army  (or 
naval  court),  willfully  neglects  or  refuses  to  appear,  or  re- 
fuses to  qualify  as  a  witness,  or  to  testify,  or  produce  docu- 
mentary evidence,  which  such  person  may  have  been  legally 
subpoenaed  to  produce,  shall  be  punished  by  a  fine  of  not 
more  than  $500  United  States  currency,  or  imprisonment  not 
to  exceed  six  months,  or  both,  at  the  discretion  of  the  court, 
and  it  shall  be  the  duty  of  the  proper  fiscal  or  prosecuting 
officer,  on  the  certification  of  the  facts  to  him  by  the  general 
court-martial,  to  file  in  the  proper  court  a  complaint  against 
and  prosecute  the  person  so  offending:  Provided,  That  $1.50 
United  States  currency  for  each  day's  attendance,  and  5  cents 


140 


COURTS-MARTIAL — WITNESSES  AND  DEPOSITIONS,  ^f  172 

United  States  currency  per  mile  for  going  from  his  residence 
to  the  place  of  trial  or  hearing,  and  5  cents  per  mile  for  re- 
turning, shall  be  duly  tendered  to  said  witness:  Provided 
further,  That  no  witness  shall  be  compelled  to  incriminate 
himself  or  to  answer  any  question  which  may  tend  to  in- 
criminate him.  (Acts  1130  and  1243,  P.  I.  Commission.) 
The  provisions  of  this  paragraph  do  not  apply  to  witnesses 
before  special  and  summary  courts. 

NOTE. — Employees  of  the  civil  government  of  the  Philippine  Islands, 
paid  from  insular  funds  of  the  islands,  are  held  not  to  be  in  the  em- 
ploy of  the  United  States.  (Dec.  Comp.  Treas.,  Aug.  20,  1902,  pub- 
lished in  Cir.  45,  A.  G.  O.,  1902.) 

172.  TENDER  or  FEES  PRELIMINARY  TO  PROSECUTION. — In 
case  a  civilian  witness  is  duly  subpoenaed  under  the  authority 
of  A.  W.  22  and  willfully  neglects  or  refuses  to  appear  or 
refuses  to  qualify  as  a  witness,  or  to  testify  or  produce  docu- 
mentary evidence  which  he  may  have  been  legally  subpoenaed 
to  produce,  he  will  at  once  be  tendered  or  paid  by  the  nearest 
finance  officer  one  day's  fees  and  mileage  for  the  journeys  to 
and  from  the  court,  and  will  thereupon  be  again  called  upon 
to  comply  with  the  requirements  of  the  law.    Upon  failing 
the  second  time  to  comply  with  the  requirements  of  the  law  a 
complete  report  of  the  case  will  be  made  to  the  officer  exercis- 
ing general  court-martial  jurisdiction  over  the  command 
with  a  view  to  presenting  the  facts  to  the  Department  of 
Justice  for  the  punitive  action  contemplated  in  A.  W.  23. 

173.  CONTEMPTS. —  (a)  Authority  to  Punish. — A  military 
tribunal  may  punish,  as  for  contempt,  any  person  who  uses 
any  menacing  words,  signs,  or  gestures  in  its  presence,  or 
who  disturbs  its  proceedings  by  any  riot  or  disorder:  Pro- 
vided, That  such  punishment  shall  in  no  case  exceed  one  month's 
confinement,  or  a  fine  of  $100,  or  both.     (A.  W.  32.)     The 
power  to  so  punish  is  vested  in  general,  special,  and  sum- 
mary courts-martial.     Punishments  adjudged  for  contempt, 
like  other  punishments  adjudged  by  courts-martial,  require 
the  approval  of  the  reviewing   authority  in  order  to  be 
effective. 

(b)  Persons  Who  May  Be  Punished  for  Contempt. — The 
words  "  any  person,"  as  used  in  A.  W.  32,  appear  to  include 


141 


^[    173  CHAPTER  X. 

civilians  as  well  as  military  persons.  In  view,  however,  of 
the  embarrassment  liable  to  attend  the  execution,  through 
military  machinery,  of  a  punishment  adjudged  against  a 
civilian  for  a  contempt  under  the  article,  it  would  generally 
be  advisable  for  the  court  to  confine  itself  to  causing  the 
party  to  be  removed  as  a  disorderly  person,  and,  in  an  aggra- 
vated instance,  to  procure  a  complaint  to  be  lodged  against 
him  for  breach  of  the  public  peace.  (Winthrop,  p.  462.) 

(c)  Direct  and  Constructive  Contempts. — A  direct  con- 
tempt is  one  committed  in  the  presence  or  immediate  prox- 
imity of  a  court  while  it  is  in  session.     An  indirect  or  con- 
structive contempt  is  one  not  so  committed.     The  conduct 
described  in  A.  W.  32  constitutes  direct  contempt.     But  con- 
duct on  the  part  of  a  person  subject  to  military  law  and 
amounting  to  a  constructive  contempt  may  be  punished  like 
any  other  conduct  that  is  prejudicial  to  good  order  and  mili- 
tary discipline,  by  bringing  the  person  to  trial  before  an- 
other court  on  charges  under  A.  W.  96. 

Constructive  contempts  by  civilians  are  punishable  as  "of- 
fenses against  public  justice,"  under  A.  W.  23,  by  proper  pro- 
ceedings in  the  United  States  courts.  In  such  cases  it  is  the  duty 
of  the  trial  judge  advocate  of  a  general  or  special  court-martial, 
or  of  the  summary  court,  to  place  the  facts  before  the  nearest 
United  States  district  attorney. 

(d)  Procedure. — Where  a  contempt  within  the  descrip- 
tion of  A.  W.  32  has  been  committed  and  the  court  deems  it 
proper  that  the  offender  shall  be  punished,  the  proper  course 
is  to  suspend  the  regular  business  and,  after  giving  the  party 
an  opportunity  to  be  heard  in  explanation,  to  proceed,  if 
the  explanation  is  insufficient,  to  impose  a  punishment,  re- 
suming  thereupon   the   original   proceedings.     The    action 
taken  is  properly  summary,  a  formal  trial  not  being  called 
for.     Close  confinement  in  quarters  or  in  the  guardhouse 
during  trial  of  the  pending  case  or  forfeiture  of  a  reasonable 
amount  of  pay,  has  been  the  more  usual  punishment.    A  full 
record  of  the  proceeding  is  at  once  made,  not  separate  from, 
but  in  and  as  a  part  of  the  regular  record  of  the  case  on 
trial,  showing  the  occasion  and  circumstances  of  the  con- 
tempt, the  words  or  acts  which  constituted  it,  the  excuse 


142 


COURTS-MARTIAL — WITNESSES  AND  DEPOSITIONS.  ^  174 

or  statement,  if  any,  of  the  party,  the  action  taken  by  the 
court,  its  judgment  and  the  disposition  of  the  offender. 
(Winthrop,  p.  469.)  Instead  of  proceeding  against  a  mili- 
tary person  for  contempt  in  the  manner  contemplated  by 
this  article,  the  alternative  course  may  be  pursued  of  bring- 
ing him  to  trial  before  a  new  court  on  a  charge  of  a  dis- 
order under  A.  W.  96. 

SECTION  H. 
DEPOSITIONS. 

174.  WHEN  ADMISSIBLE. — A  duly  authenticated  deposition 
taken  upon  reasonable  notice  to  the  opposite  party  may  be 
read  in  evidence  before  any  military  court  or  commission  in 
any  case  not  capital,  or  in  any  proceeding  before  a  court  of 
inquiry  or  a  military  board,  if  such  deposition  be  taken  when 
the  witness  resides,  is  found,  or  is  about  to  go  beyond  the 
State,  Territory,  or  District  in  which  the  court,  commission, 
or  board  is  ordered  to  sit,  or  beyond  the  distance  of  100 
miles  from  the  place  of  trial  or  hearing,  or  when  it  appears 
to  the  satisfaction  of  the  court,  commission,  board,  or  ap- 
pointing authority  that  the  witness,  by  reason  of  age,  sick- 
ness, bodily  infirmity,  imprisonment,  or  other   reasonable 
cause,  is  unable  to  appear  and  testify  in  person  at  the  place 
of  trial  or  hearing :  Provided,  That  testimony  by  deposition 
may  be  adduced  for  the  defense  in  capital  cases.    (A.  W.  25.) 

NOTE. — For  form  for  interrogatories  and  depositions,  see  Appen- 
dix 17. 

I74a.  Depositions  upon  Oral  Interrogatories. — If  reasonably 
practicable,  and  upon  request  of  the  accused  or  his  counsel,  or  of 
the  trial  judge  advocate,  or  upon  the  direction  of  the  court,  com- 
mission, or  board,  depositions  may  be  taken  upon  oral  interroga- 
tories and  reduced  to  writing  in  the  manner  prescribed  in  para- 
graph 18LJ,  infra,  and  may  be  read  in  evidence  in  the  same 
manner  and  for  the  same  purposes  in  like  cases  as  depositions 
taken  upon  written  interrogatories  under  paragraphs  176  and 
177  of  this  Manual. 

175.  BEFORE  WHOM  TAKEN. — Depositions  to  be  read  in 
evidence  before  military  courts,  commissions,  courts  of  in- 


143 


^[    176  CHAPTER  X. 

quiry,  or  military  boards,  or  for  other  use  in  military  ad- 
ministration, may  be  taken  before  and  authenticated  by  any 
officer,  military  or  civil,  authorized  by  the  laws  of  the  United 
States  or  by  the  laws  of  the  place  where  the  deposition  is 
taken  to  administer  oaths.  (A.  W.  26.) 

176.  INTERROGATORIES,  How   SUBMITTED. — The  procedure 
for  submitting  interrogatories  for  a  deposition  is  as  follows : 

(a)  The  party  desiring  the  deposition  submits  to  the  op- 
posite party  the  interrogatories  which  he  wishes  propounded 
to  the  person  whose  deposition  he  desires,  and  the  opposite 
party  then  submits  to  him  such  cross-interrogatories,  if  any, 
as  he  may  desire.     Such  additional  direct  and  cross-inter- 
rogatories may  be  submitted  as  desired;  or 

(b)  The  party  desiring  the  deposition  submits  to  the  court, 
military  commission,  or  board  the  interrogatories  which  he 
wishes  propounded  to  the  person  whose  deposition  he  desires. 
The  opposite  party  then  submits  to  the  court,  military  com- 
mission, or  board  such  cross-interrogatories,  if  any,  as  he  may 
desire.     The  court,  military  commission,  or  board  then  sub- 
mits such  additional  interrogatories  as  it  may  deem  proper 
and  desirable,  and  such  additional  direct  and  cross-inter- 
rogatories may  be  submitted  as  are  desired. 

(c)  Where  the  court,  military  commission,  or  board  de- 
sires that  the  deposition  of  a  particular  person  be  obtained, 
it  will  cause  interrogatories  to  be  prepared  accordingly.    The 
prosecution  and  defense  (or  other  party  or  parties  in  inter- 
est)  then  submit  such  interrogatories  as  they  may  desire. 
Such  additional  interrogatories  may  be  included  as  are  de- 
sired by  the  court,  military  commission,  or  board,  or  by  a 
party  in  interest. 

177.  PROCEDURE  TO  OBTAIN  DEPOSITION. —  (a)  All  the  in- 
terrogatories to  be  propounded  to  the  person  are  entered 
upon  the  form  of  interrogatories  and  deposition,  and  the  trial 
judge  advocate,  summary  court,  or  recorder  will  take  appro- 
priate steps  to  cause  the  desired  deposition  to  be  taken  with 
the  least  practicable  delay.     In  an  ordinary  case  he  will 
either  send  the  interrogatories  to  the  commanding  officer  of 
the  post,  recruiting  station,  or  other  military  command  at  or 
nearest  which  the  person   whose   deposition  is   desired  is 
stationed,  resides,  or  is  understood  to  be,  or  will  send  them 

144 


COUKTS-MARTIAL — WITNESSES  AND  DEPOSITIONS.  If  177 

to  some  other  responsible  person,  preferably  a  person  com- 
petent to  administer  oaths,  at  or  near  the  place  at  which  the 
person  whose  deposition  is  desired  is  understood  to  be.  In 
a  proper  case  the  interrogatories  may  be  sent  to  the  division, 
area,  or  department  or  other  superior  commander  or  to  the 
witness  himself,  and  in  any  case  they  will,  when  necessary, 
be  accompanied  by  a  proper  explanatory  letter. 

(b)  When  interrogatories  are  received  by  a  commanding 
officer,  he  will  either  take  or  cause  to  be  taken  the  deposition 
thereon.    He  will  send  an  intelligent  person — preferably  an 
officer,  if  available,  or  a  person  with  legal  training  or  ex- 
perience if  available,  accompanied  if  practicable  by  a  military 
stenographic  reporter  or  stenographer — to  the  necessary  place 
for  the  purpose  of  obtaining  the  deposition,  or  he  may 
properly  arrange  by  mail  or  otherwise  that  the  deposition 
be  taken,  if  he  can  make  such  arrangements  as  to  assure  him- 
self that  the  work  will  thus  be  properly  done,    The  deposition 
will  be  taken  with  the  least  practicable  delay,  and  when 
taken  will  be  sent  at  once  direct  to  the  trial  judge  advocate 
of  the  court-martial  trying  the  case,  or  other  proper  person. 

(c)  If  the  witness  whose  deposition  is  desired  is  a  civilian, 
the  trial  judge  advocate  or  other  proper  person  sending 
interrogatories  as  above  will  inclose  with  them  a  prepared 
voucher  for  the  fees  and  mileage  of  the  witness,  leaving 
blank  such  spaces  provided  therein  as  it  may  be  necessary 
to  leave  blank,  accompanied  by  the  required  number  of 
copies  of  the  orders  appointing  the  court,  military  commis- 
sion, or  board.    The  trial  judge  advocate,  summary  court, 
or  recorder  will  also  send  with  the  interrogatories  duplicate 
subpoena  requiring  the  witness  to  appear  in  person  at  a  time 
and  place  to  be  fixed  by  the  officer,  military  or  civil,  who  is 
to  take  the  deposition.    If  the  name  of  this  officer  is  not 
known,  the  space  provided  for  it  will  be  left  blank.    If  a 
military  officer  takes  the  deposition,  he  will  complete  the  wit- 
ness voucher,  certify  it,  and  transmit  it  to  the  nearest  dis- 
bursing finance  officer  for  payment.     When  the  deposition  is 
to  be  taken  by  a  civil  officer  he  will  be  asked  to  obtain  and 
furnish  to  the  military  officer  requested  or  designated  to 
cause  the  deposition  to  be  taken  the  necessary  data  for  the 

21358°— 20 10 

145 


f    178  CHAPTER  X. 

completion-  of  the  witness  voucher,  and  the  latter  will  com- 
plete the  voucher,  certify  it,  and  transmit  it  to  the  nearest 
disbursing  finance  officer  for  payment. 

In  the  case  of  a  military  witness  subpoena  will  not  ac- 
company the  interrogatories,  but  the  officer  before  whom  the 
deposition  is  to  be  taken  will  take  the  necessary  steps  to  have 
the  witness  appear  at  the  proper  time  and  place. 

ITS.  TRACING  DELAYED  DEPOSITIONS. — Trial  judge  advo- 
cates and  defense  counsel  will  be  prompt  in  preparing  and 
forwarding  interrogatories.  If  the  deposition  is  not  re- 
ceived within  a  reasonable  time,  a  letter  of  inquiry  will  be 
sent;  and,  if  a  prompt  explanation  of  the  delay  is  not  re- 
ceived, the  area  or  department  commander  or  other  proper 
superior  will  be  advised. 

179.  DESIGNATION    OF    DEPONENT   BY    OFFICIAL    TITLE. — 
Where  it  is  desired  to  take  the  deposition  of  some  person 
holding  a  certain  office  or  position,  as,  for  instance,  a  troop 
commander,   master  sergeant,   first  sergeant,   cashier   of    a 
bank,  post  exchange  officer,  etc.,  and  the  name  of  the  person 
is  unknown,  interrogatories  may  be  prepared  in  the  usual 
way  for  submission  to  the  person  holding  the  office  or  posi- 
tion, without  naming  him  unless  it  shall  appear  that  the 
accused  will  be  prejudiced  thereby. 

180.  DEPONENT'S  ANSWERS  TO  BE  RESPONSIVE. — Before  a 
witness  gives  his  answers  to  the  interrogatories  they  should 
be  read  and,  if  necessary,  be  explained  to  him,  or  he  should 
be  permitted  to  read  them  over  in  order  that  his  answers 
may  be  clear,  full,  and  to  the  point.    The  person  taking  the 
deposition  should  not  advise  the  witness  how  he  should  an- 
swer, but  he  should  endeavor  to  see  that  the  witness  under- 
stands the  questions  and  what  is  desired  to  be  brought  out 
by  them,  and  that  his  answers  are  clear,  full,  and  to  the 
point. 

181.  FEES  FOR  TAKING  DEPOSITIONS. — Civil  officers  before 
whom  depositions  are  taken  for  use  before  courts-martial 
will  be  paid  the  fees  allowed  by  the  law  of  the  place  where 
the  depositions  are  taken. 

181J.  Depositions  upon  Oral  Interrogatories — Procedure. — The 
procedure  for  procuring  depositions  upon  oral  interrogatories  is 
as  follows: 

146 


COURTS-MARTIAL — WITNESSES  AND  DEPOSITIONS.^"  18  Ij 

(a)  The  party  desiring  the  deposition  on  oral  interrogatories 
will  so  notify  the  opposite  party,  and  also  the  court,  commis- 
sion, or  board,  in  writing,  and  may  at  the  same  time  outline 
the  subject  upon  which  he  desires  the  witness  interrogated  and 
the  main  questions  which  he  wants  propounded  to  him,  at  the 
same  time  attaching  a  copy  of  the  charges  and  specifications 
(or,  in  case  of  a  court  of  inquiry  or  other  board,  a  brief  state- 
ment of  the  matter  under  investigation)  so  as  to  better  enable 
the  counsel  examining  the  witness  to  cover  all  the  ground  and 
intelligently  interrogate  the  witness  upon  the  points  upon  which 
information  is  desired.    The  opposite  party  may  thereupon  sub- 
mit within  24  hours,  if  so  desired,  an  outline  of  the  points  upon 
which  he  particularly  desires  the  witness  cross-examined  with 
the  main  cross-interrogatories  to  be  propounded.     The  court, 
board,  or  commission  may,  if  it  desires,  similarly  outline  any 
matter  or  questions  upon  which,  on  its  behalf,  the  witness  shall 
be  interrogated. 

(b)  Where  the  court,  commission,  or  board  desires  the  deposi- 
tion of  a  witness  taken  on  its  behalf,  on  oral  interrogatories,  the 
same  procedure  will  be  followed;  i.  e.,  all  parties  will  be  given 
an  opportunity  to  participate  in  the  deposition  in  the  manner 
hereinbefore  prescribed. 

(c)  Such  notice  and  all  the  accompanying  papers,   as  pre- 
scribed in  the  preceding  subparagraph,  including  such  charges 
(or  subject  matter  to  be  investigated  by  a  court  of  inquiry  or 
board,  as  the  case  may  be),  will  be  sent  by  the  trial  judge  ad- 
vocate, summary  court,  recorder,  or  board  to  the  commanding 
officer  of  the  post,  recruiting  station,  or  other  military  command 
at  or  nearest  which  the  person  whose  deposition  is  desired  is 
stationed,  resides,  or  is  understood  to  be.    In  case  the  witness  is 
a  civilian,  the  papers  will  be  accompanied  by  a  subpoena  and  a 
prepared  voucher  for  his  or  her  signature  for  witness  fees  and 
mileage.     Where  requests  for  depositions  upon  oral  interroga- 
tories are  sent  to  a  commanding  officer,  such  officer  will  cause 
the  deposition  to  be  accomplished  in  the  presence  of  a  summary 
court  or  other  officer,  civil  or  military,  authorized  by  law  to 
administer  oaths;  and  an  available  trial  judge  advocate  of  a 
general  or  special  court-martial  will  ordinarily  be  detailed  to 
represent  the  United  States,  and  available  defense  counsel  of  a 


147 


If    182  CHAPTER  X. 

general  or  special  court-martial  to  represent  the  accused;  but  if 
there  be  no  such  trial  judge  advocate  or  assistant  or  defense  coun- 
sel or  assistant  available,  some  other  suitable  person  will  be  desig- 
nated ;  and  in  no  case  will  an  accused  be  deprived  of  the  right  to 
be  represented  by  counsel  of  his  own  selection,  civil  counsel  if 
he  so  provides,  or  military  if  such  counsel  be  reasonably  avail- 
able. A  military  stenographer  will,  if  practicable,  be  detailed 
to  take  down  and  transcribe  the  deposition.  In  propounding 
questions  to  the  witness  such  trial  judge  advocate  and  defense 
counsel  (or  other  counsel  retained  or  appointed  or  detailed  for 
such  duty)  will  be  careful  to  cover  all  the  matters  set  out  in 
the  outlines  of  the  subjects  upon  which  the  witness  is  to  be  in- 
terrogated, and  to  propound  all  the  questions  submitted  by  the 
parties  whom  they  represent,  respectively  (the  trial  judge  ad- 
vocate acting  also  for  the  court,  commission,  or  board  in  so  in- 
terrogating the  witness),  and  such  additional  questions  as  may 
in  the  interests  of  justice  appear  desirable,  having  due  regard 
for  the  rules  of  evidence  applicable  before  courts-martial.  (For 
method  of  completion  and  authentication,  see  form,  Appendix 

17.) 

(d)  The  summary  court  officers,  trial  judge  advocates,  and 
defense  counsel  called  upon  to  take  part  in  taking  depositions 
upon  oral  interrogatories  hereunder  will  use  their  best  efforts 
to  obtain  from  the  witness  the  same  results  as  though  he  had 
been  interrogated  in  the  ordinary  way  in  open  court,  and  in  no 
case  will  such  duty  be  permitted  to  be  performed  in  a  perfunc- 
tory manner. 

(e)  Upon  receipt  of  the  accomplished  deposition  and  signed 
vouchers,  the  trial  judge  advocate,  summary  court,  or  recorder 
will  complete  and  certify  such  vouchers  and  send  them  to  the 
nearest  finance  office  for  payment. 

182.  TAKING  DEPOSITIONS  IN  FOREIGN  COUNTRY. — If  the 
evidence  desired  from  a  witness  residing  in  a  foreign  country 
is  necessary  and  material  and  is  desired  to  be  read  before  a 
court-martial,  military  commission,  court  of  inquiry,  or 
military  board  sitting  within  any  of  the  States  of  the  Union 
or  the  District  of  Columbia,  interrogatories  (accompanied 
by  the  necessary  vouchers  for  fees  and  mileage)  will  ordi- 


148 


COURTS-MAETIAL — WITNESSES  AND  DEPOSITIONS,  ^f  183 

narily  be  forwarded  through  military  channels  to  The  Adju- 
tant General  of  the  Army.  They  will  then  be  transmitted 
by  the  Secretary  of  War  to  the  Secretary  of  State,  with  the 
request  that  they  be  sent  to  the  proper  consul  of  the  United 
States  and  the  deposition  of  the  witness  be  taken.  In  the 
case  of  troops  serving  along  the  international  boundaries, 
outside  of  the  United  States  proper,  or  in  foreign  countries, 
the  officer  exercising  general  court-martial  jurisdiction  may, 
in  his  discretion,  detail  an  officer  to  take  the  deposition  of  a 
civilian  witness,  or  he  may  send  the  interrogatories  direct 
to  the  consul  of  the  United  States  nearest  the  place  of  resi- 
dence of  the  witness  with  the  request  that  the  deposition  be 
taken.  In  the  latter  case  the  interrogatories  will  be  accom- 
panied by  the  proper  vouchers  for  the  fees  and  mileage  of 
the  witness. 

NOTE. — For  use  of  depositions  as  evidence,  see  Chapter  XI,  Evi- 
dence. 

SECTION  III. 

FEES,  MILEAGE,  AND  EXPENSES  OF  WITNESSES. 

183.  OFFICERS  AND  SOLDIERS,  ACTIVE  OR  RETIRED. — Officers 
and  soldiers  on  the  active  list  required  to  attend  a  court- 
martial  as  witnesses  are  not  entitled  to  receive  mileage  and 
fees  like  civilian  witnesses,  but  are  entitled  to  such  travel 
allowances  as  the  law  allows  to  officers  and  soldiers  travel- 
ing under  orders ;  but  a  retired  officer,  not  assigned  to  active 
duty,  or  a  retired  soldier  is  entitled  to  the  per  diem  and 
mileage  provided  for  civilian  witnesses  not  in  Government 
employ. 

NOTE. — The  fees,  mileage,  and  expenses  of  persons  in  the  military 
service  or  of  civilians  in  the  Government  employ  duly  subpoenaed 
and  appearing  before  civil  courts,  whether  State  or  Federal,  are  pay- 
able by  the  civil  authorities. 

184.  CIVILIANS  IN  GOVERNMENT  EMPLOY. — Civilians  in  the 
employ  of  the  Government  when  traveling  upon  summons  as 
witnesses  before  military  courts  are  entitled  to  transportation 
in  kind  from  their  place  of  residence  to  the  place  where  the 
court  is  in  session  and  return.     If  no  transportation  be  fur- 
nished they  are  entitled  to  reimbursement  of  the  cost  of  travel 


149 


*[[  185  CHAPTER  X. 

actually  performed  by  the  shortest  usually  traveled  route, 
including  transfers  to  and  from  railway  stations,  at  rates 
not  exceeding  50  cents  for  each  transfer,  and  the  cost  of 
sleeping-car  accommodations  to  which  entitled  or  steamer 
berth  when  an  extra  charge  is  made  therefor.  They  are 
also  entitled  to  reimbursement  of  the  actual  cost  of  meals 
and  rooms  at  a  rate  not  exceeding  $3  per  day  for  each  day 
actually  and  unavoidably  consumed  in  travel  or  in  attend- 
ance upon  the  court  under  the  order  or  summons.  No  allow- 
ance will  be  made  to  them  when  attendance  upon  court  does 
not  require  them  to  leave  their  stations. 

185.  CIVILIANS  NOT  IN  GOVERNMENT  EMFLOY. — A  civilian 
not  in  Government  employ  duly  summoned  to  appear  as  a 
witness  before  a  military  court,  commission,  or  board,  or  at 
a  place  where  his  deposition  is  to  be  taken  for  use  before 
such  court,  commission,  or  board,  will  receive  $1.50  for  each 
day  of  his  actual  attendance  before  such  court,  commission, 
or  board,  or  for  the  purpose  of  having  his  deposition  taken, 
and  5  cents  a  mile  for  going  from  his  place  of  residence  to 
the  place  of  trial  or  of  the  taking  of  his  deposition,  and  5 
cents  a  mile  for  returning,  except  as  follows : 

(a)  In  Porto  Eico  and  Cuba  he  will  receive  $1.50  a  day 
while  in  attendance  as  above  stated  and  15  cents  for  each 
mile  necessarily  traveled  over  stage  line  or  by  private  con- 
veyance and  10  cents  for  each  mile  over  any  railway  or 
steamship  line. 

(ft)  In  Alaska,  east  of  the  one  hundred  and  forty-first 
degree  of  west  longitude,  he  will  receive  $2  a  day  while  in 
attendance  as  above  stated  and  10  cents  a  mile,  and  west  of 
said  degree  $4  a  day  and  15  cents  a  mile. 

(c)  In  the  States  of  Wyoming,  Montana,  Washington, 
Oregon,  California,  Nevada,  Idaho,  Colorado,  Utah,  New 
Mexico,  and  Arizona,  he  will  receive  $5  a  day  for  the  time  of 
actual  attendance  as  above  stated,  and  for  the  time  neces- 
sarily occupied  in  going  to  and  returning  from  the  same, 
and  15  cents  for  each  mile  necessarily  traveled  over  any 
stage  line  or  by  private  conveyance  and  5  cents  for  each  mile 
by  any  railway  or  steamship. 

NOTE. — 1.  Travel  must  be  estimated  by  the  shortest  usually  traveled 
route — by  established  lines  of  railroad,  stage,  or  steamer — the  time 


150 


COURTS-MARTIAL — WITNESSES  Am>  DEPOSITIONS.  ^  186 

occupied  to  be  determined  by  the  official  schedules,  reasonable  allow- 
ance being  made  for  unavoidable  detention. 

2.  These  rates  apply  to  the  Philippine  Islands.     (See  Cir.  45,  A, 
G.  O.,  1902.) 

3.  A  civilian  not  in  Government  employ,  when  furnished  transporta 
tion  on  transport  or  other  Government  conveyance,  is  entitled  to  57.142 
per  cent  of  5  cents  per  mile  (equal  to  2.857  cents  per  mile).     (Cornp. 
Dec.,  Aug.  20,  1902,  published  in  Cir.  45,  A.  G.  O.,  1902.) 

186.  PAYMENT  FOR  RETURN  JOURNEY. — The  charges  for  re- 
turn journeys  of  witnesses  will  be  made  upon  the  basis  of  the 
actual  charges  allowed  for  travel  to  the  place  of  giving  testi- 
mony, and  the  entire  amount  thus  completed  will  be  paid 
upon  discharge  from  attendance,  without  waiting  for  com- 
pletion of  return  travel. 

187.  CONTENTS  OF  VOUCHERS. — The  items  of  expenditure 
authorized  for  civilian  witnesses  will  be  set  forth  in  detail 
and  made  a  part  of  each  voucher  for  reimbursement.     No 
other  items  will  be  allowed. 

The  certificate  of  the  trial  judge  advocate,  or  other  officer, 
will  be  evidence  of  the  fact  and  period  of  attendance,  and 
will  be  made  upon  the  voucher. 

When  payment  is  made  under  the  provisions  of  paragraph 
184,  the  correctness  of  the  items  will  be  attested  by  the  affi- 
davit of  the  witness,  to  be  made,  when  practicable,  before  the 
officer  who  certifies  the  voucher. 

188.  WITNESS  IN  SEVERAL  TRIALS  ON  SAME  DAY. — A  civil- 
ian attending  as  a  witness  in  several  court-martial  trials  on 
the  same  day  is  entitled  to  a  separate  fee  for  attendance  in 
each  case  (Dig.  Dec.  Comp.,  1894  to  1902,  p.  476),  but  will 
receive  mileage  in  only  one  case. 

189.  VOUCHER  TO  BE  DELIVERED  TO  WITNESS. — A  civilian 
witness  not  in  Government  employ  who  appears  to  testify  is 
entitled,  upon  his  discharge  from  attendance,  to  receive  from 
the  trial  judge  advocate,  if  any  (or  summary  court,  recorder 
of  court  of  inquiry  or  board,  etc.),  his  witness  voucher  prop- 
erly filled  out.     If  not  practicable  to  deliver  to  the  witness 
his  voucher  at  that  time,  his  address  will  be  obtained  and  his 
witness  voucher  will  be  promptly  forwarded  to  the  nearest 
disbursing  finance  officer.    To  entitle  a  witness  to  the  pay- 
ment of  fees  and  mileage  it  is  not  essential  that  he  should 
produce  a  subpoena. 

151 


^[  190  CHAPTER  X. 

190.  LOST  VOUCHER. — Where  the  voucher  of  a  witness  has 
been  lost,  a  new  voucher  may  be  issued  by  the  trial  judge 
advocate  upon  a  satisfactory  showing  of  such  loss,  supported 
by  affidavit.     The  new  voucher  should  be  so  noted  as  to  in- 
dicate its  character  and  should  be  forwarded  to  the  Chief  of 
Finance  for  settlement. 

191.  FEES  FOR  SERVICE  OF  SUBPCEXA. — There  is  no  fee  or 
compensation  fixed  by  statute  or  regulation  for  the  service 
of  subpoena  to  secure  the  attendance  of  witnesses  before  mili- 
tary courts.     Ordinarily  service  will  be  made  by  an  officer  or 
soldier  or  other  person  subject  to  military  law,  but  if  service 
by  a  civilian  is  deemed  by  the  trial  judge  advocate  or  area  or 
department,  division,  camp,  or  other  superior  commander  to  be 
preferable,  the  services  of  a  civilian  may  be  used,  and  the 
fees  and  mileage  allowed  by  law  in  that  locality  for  similar 
services  may  be  paid  by  a  finance  officer  from  the  appropria- 
tion "  for  expenses  of  courts-martial,  etc." 

192.  EMPLOYMENT  OF  EXPERTS. — When  the  employment  of 
an  expert  is  necessary  during  a  trial  by  court-martial  the 
necessity  for  such  employment  should  be  made  to  appear  by 
a  resolution  of  the  court.    This  resolution  will  be  forwarded 
by  the  trial  judge  advocate,  in  advance  of  the  employment, 
to  the  authority  appointing  the  court,  with  a  request  for 
authority  to  employ  the  expert  and  for  a  decision  as  to  the 
compensation  to  be  paid  him.    The  request  should,  if  practi- 
cable, state  the  compensation  that  is  recommended  by  the 
trial  judge  advocate  and  the  defense  counsel.    The  compensa- 
tion of  the  expert,  including  the  compensation  for  photo- 
graphs that  may  be  necessary  in  connection  with  his  testi- 
mony, will  be  paid  out  of  the  appropriation  "  for  expenses 
of  courts-martial,  etc." 

NOTE. — Where,  in  advance  of  trial,  the  trial  judge  advocate  or  the 
defense  counsel  knows  that  the  employment  of  an  expert  will  be 
necessary,  he  should,  without  delay,  apply  to  the  appointing  authority 
for  authority  to  employ  the  expert,  stating  the  necessity  therefor  and 
probable  cost  thereof. 

193.  EXPENSES  or  COURTS-MARTIAL,  ETC.,  How  PAYABLE. — 
The  fees  of  civilian  witnesses,  the  mileage  of  both  civil  and 
militan'  witnesses,  the  legal  fee  of  the  proper  official  for 
certified  copy  of  a  marriage  certificate,  the  expense  of  pro- 

152 


COURTS-MARTIAL — WITNESSES  AND  DEPOSITIONS,  ^f  193 

curing  a  transcript  of  a  stenographer's  notes  of  testimony 
taken  before  a  United  States  commissioner,  the  fees  of  a 
notary  for  swearing  a  witness,  and  the  expenses  (in- 
cluding railway  fare  and  hotel  bills)  of  a  United  States 
consul  stationed  in  a  foreign  country  in  taking  depositions, 
when  such  items  are  incurred  in  connection  with  a  trial  be- 
fore a  court-martial  or  military  commission,  or  investi- 
gation before  a  court  of  inquiry,  and  other  necessary  expenses, 
are  paid  by  the  Finance  Department  out  of  the  annual  appro- 
priation "  for  expenses  of  courts-martial,  etc."  If  no  finance 
officer  be  present  at  the  place  where  the  court  it  sitting,  the 
vouchers  may  be  transmitted  direct  to  any  finance  officer. 
Such  vouchers  are  not  transferable. 

NOTE. — Blank   vouchers  may   be   procured    from    any    disbursing 
finance  officer. 


153 


CHAPTER  XI. 
COURTS-MARTIAL—EVIDENCE. 

(Revised  and  approved  by  Professor  Wigrnore,  Colonel,  Judge 
Advocate,  Reserve  Corps.) 


Section  I.  Introductory  provisions: 

194.  General  remarks 157 

195.  The  issues 158 

198.  Analysis   of   evidence   by   trial   judge   advocate   and 

counsel 159 

197.  Duties  of  court — Opening  statements 160 

198.  Rules  of  evidence  for  courts-martial 161 

199.  Rules  where  found 162 

200.  Rules  of  evidence  to  be  applied  irrespective  of  rank 163 

201.  Protection  of  witnesses 163 

202.  Evidence  must  be  material  and  relevant 163 

202a.  Court-martial   should    reject   improper    evidence    al- 
though not  objected  to 165 

Section  II.  Circumstantial  evidence : 

203.  Circumstantial  evidence 165 

204.  Illustration  of  difference  between  good  and  bad  circum- 

stantial evidence 166 

205.  Accused's  bad  character 167 

206.  Same — Exceptions 167 

Section  III.  Testimonial  evidence: 

207.  Testimonial  evidence 169 

208.  Competency  rule  in  general 169 

209.  Elements  of  competency  of  witness 169 

210.  General  capacity  of  witness 169 

210a.  Children  as  witnesses 170 

211.  Moral  incapacity  of  witness 170 

212.  Mental  incapacity  of  witness 170 

213.  Interest  or  bias 170 

214.  Where  accused  is  witness 171 

215.  Procedure  where  accused  fails  to  testify  or  make  a 

statement 172 

216.  Effect  of  turning  state's  evidence 173 

217.  Competency  of  accused  when  testifying  against  an  ac- 

complice   173 

218.  Expert  capacity 173 

219.  Insanity  or  mental  defect  or  derangement  of  accused 174 

220.  Testimonial  knowledge 179 

221.  Hearsay  rule ISO 

221a.  Exceptions  to  the  hearsay  rule 1S1 

222.  Dying  declarations 183 

223.  Res  gestse 184 

154 


COURTS-MARTIAL* — EVIDENCE. 

Section  III.  Testimonial  evidence — Continued.  Page. 

223a.  Identification  of  the  accused 185 

224.  Evidence  of  conspirators  and  accomplices 185 

225.  Confessions 186 

226.  Admissions  against  interest 190 

227.  Privileged  communications 190 

228.  Privilege  of  wife  and  husband  to  testify 192 

229.  Telegrams  not  privileged 193 

230.  Confidential  papers 193 

231.  Communications  from  officers  or  soldiers  to  medical 

officer  not  privileged 193 

232.  Communications  between  civilian  physicians  and  pa- 

tients not  privileged 194 

233.  Compulsory  self-crimination  prohibited 194 

(a)  Where  privilege  as  to  self-crimination  ceases-  194 

234.  Privilege  against  self-crimination  is  a  personal  one 195 

235.  Procedure    where    alleged    incriminating   question    is 

asked 195 

236.  Not  self-crimination  to  require  accused  to  submit  to 

physical  examination 195 

Section  IV.  Documents: 

236a.  General  rules  applicable  to  documents 197 

(1.)  Rule  1. — Production  of  the  original 197 

(2.)  Rule  2. — Giving     testimonial     status     to     a 

writing 197 

(3.)  Rule  3. — Hearsay   rule  exception  for  official 

statements 197 

(4)  Rule  ^—Authentication 198 

236b.  Writings  not  in  dispute 198 

237.  Manner  of  proving  contents  of  writing 199 

237a.  Report  of  investigation  officer — Summary  of  evidence 

of  preliminary  investigation 200 

238.  Public  records 201 

238a.  Certain  official  writings  are  evidence  of  facts  recited 

therein 201 

239.  Authentication  of  writings 202 

240.  Comparison  of  handwriting 202 

241.  Use  of  memoranda 203 

242.  Memorandum  as  evidence 204 

243.  Memorandum  for  refreshing  recollection 204 

244.  Books  of  account 204 

245.  Maps,  photographs,  etc ; 205 

Section  V.  Examination  of  witnesses : 

246.  Witnesses  examined  apart  from  each  other 205 

247.  Objections  to  competency;  when  made 205 

248.  Number  of  witnesses  required 205 

249.  Order  of  examination  of  witnesses 206 

250.  Direct,  examination— Identification  of  accused 207 

i 

155 


CHAPTER  XI. 

flection  V.  Examination  of  witnesses — Continued.  Page. 

251.  Cross-examination 207 

252.  Redirect  and  recross  examination 207 

253.  Examination  by  the  court 207 

253a.  Questions  by  members  of  the  court 208 

254.  Leading  questions — Double  questions 208 

255.  Recalling  of  witnesses 211 

Section  VI.  Credibility  of  witnesses : 

256.  What  credibility  consists  in 211 

257.  Proof  of  character  by  general  reputation 212 

258.  Conviction  of  crime 212 

258a.  Corroborative  statements — Identification  of  accused.  212 

259.  Contradiction  by  other  witnesses 213 

260.  Inconsistent  statements 214 

261.  Prejudice,  bias,  etc 215 

262.  Credibility  of  accused  as  a  witness 215 

262£.  Impeachment  of  one's  own  witness 215 

Section  VII.  Depositions  and  former  testimony: 

263.  Depositions  admissible 216 

264.  Depositions  for  defense  in  capital  cases 216 

265.  Objections  as  to  competency  of  witness  and  adniissi- 

bility  of  evidence 216 

266.  Examination  of  deposition  by  counsel 217 

267.  Reading  of  depositions 217 

268.  Miscellaneous  provisions  as  to  depositions 217 

269.  Affidavits  not  admissible 218 

270.  Certificate  of  discharge 218 

271.  Statement  of  service 218 

272.  Former  testimony  before  csurt  of  inquiry 218 

273.  Evidence  of  pardon 219 

274.  Evidence   of   former   trial   by   court-martial   or   civil 

court 219 

275.  Former  testimony  in  civil  courts  and  courts-martial 220 

Section  VIII.  Presumptions: 

276.  Presumptions 220 

277.  Presumptions  of  law 220 

278.  Presumptions  of  fact 221 

279.  Prima  facie  evidence 222 

280.  Intent  in  connection  with  crimes 222 

281.  Intent  in  military  cases 223 

282.  Ignorance  of  law 224 

283.  Ignorance  of  fact 224 

284.  Evidence  of  desertion 225 

(a)   Statutory  rules  of  evidence 227 

285.  Drunkenness  as  showing  absence  of  intent 228 

286.  Drunkenness  in  military  cases 229 

287.  Proof  of  drunkenness 229 

288.  Reasonable  doubt  and  burden  of  proof 230 

Section  IX.  Judicial  notice: 

289.  Judicial  notice 231 

156 


COURTS-MARTIAL — EVIDENCE.  *f    194 

SECTION  I. 
INTRODUCTORY  PROVISIONS. 

194.  GENERAL  REMARKS. — The  oath  taken  by  members  of 
general  and  special  courts  requires  them  to  try  and  determine 
"  according  to  evidence  "  the  matter  before  them.  A  sum- 
mary court,  although  it  does  not  take  such  an  oath,  will  also 
determine  the  matter  before  it  solely  on  the  evidence  in  the 
case,  and  no  evidence  would  be  admissible  before  a  sum- 
mary court  that  is  not  admissible  before  general  and  special 
courts.  The  evidence  thus  referred  to,  according  to  which 
the  court  must  decide  the  case,  means  all  the  matters  of 
fact  which  the  court  permits  to  be  introduced,  or  of  which 
it  takes  judicial  notice,  with  a  view  to  prove  or  disprove  the 
charges.  Every  item  of  this  evidence  must  be  introduced 
in  open  court,  and  it  would  be  seriously  irregular  and  im- 
proper for  any  member  of  the  court  to  convey  to  other  mem- 
bers, or  to  consider  himself,  any  personal  information  that 
he  possessed  as  to  the  merits  of  the  case  or  the  character  of 
the  accused  without  stating  it  in  open  court  and,  if  a  wit- 
ness for  the  prosecution,  retiring  as  a  member  of  the  court, 
as  provided  in  A.  W.  8  and  9.  But  while  their  knowledge  of 
the  facts  must  come  to  them  from  the  evidence,  the  members 
are  expected  to  utilize  their  common  sense,  their  knowledge 
of  human  nature,  and  the  ways  of  the  world  in  weighing 
the  evidence  and  arriving  at  a  finding.  In  the  light  of  all 
the  circumstances  of  the  case,  they  should  consider  the  in- 
herent probability  or  improbability  of  the  evidence  given 
by  the  several  witnesses,  and  with  this  in  mind  the  court 
may  properly  believe  one  witness  and  disbelieve  several 
whose  testimony  is  in  conflict  with  that  of  the  one. 

The  methods  which  are  employed  by  courts  of  justice  to 
ascertain  the  facts — that  is,  the  truth — respecting  any  past 
transaction  closely  resemble  those  resorted  to  by  an  indi- 
vidual for  a  similar  purpose.  If  A  desires  to  ascertain 
whether  a  particular  act  did  or  did  not  take  place,  he  ad- 
dresses himself  to  those  who  were  in  a  situation  to  observe 
the  occurrence  itself,  and  so  endeavors  to  obtain  from  each 
person  present  his  version  of  the  occurrence.  From  the 


157 


^f    195  CHAPTER  XI. 

testimony  thus  obtained  he  forms  his  conclusion  as  to 
whether  or  not  the  act  took  place.  In  the  course  of  his  in- 
vestigation, however,  he  finds  that  all  who  were  present  and 
witnessed  the  occurrence  as  bystanders  do  not  give  testimony 
of  equal  importance  or  value.  Some  having  greater  powers 
of  observation  or  better  memories  than  others  give  in  conse- 
quence more  valuable  testimony.  Some  of  the  witnesses, 
being  children  or  persons  of  weak  or  unsound  mind,  are 
without  the  requisite  mental  capacity  to  observe  facts  or  to 
appreciate  their  relations  to  each  other;  others,  by  reason 
of  their  moral  character,  are  not  regarded  as  worthy  of 
belief  by  their  fellow  citizens;  still  others  were  insane  or 
quite  under  the  influence  of  intoxicating  liquor  at  the  time 
of  the  occurrence,  and  so  were  incapacitated  from  observing. 
A,  therefore,  rejects  some  of  the  statements  as  entirely  un- 
trustworthy; to  others  he  attaches  weight  in  proportion  to 
their  worthiness  of  belief,  and  so  endeavors  to  reach  a  con- 
clusion as  to  the  truth  of  the  occurrence  or  event  which  was 
the  original  subject  of  his  inquiry.  (Davis,  p.  244.) 

195.  THE  ISSUES. — It  is  well  to  understand,  in  the  begin- 
ning of  this  consideration  of  the  rules  of  evidence,  the 
purpose  for  which  the  evidence  is  to  be  introduced  in  the 
manner  prescribed  and  laid  down  by  the  rules.  The  pur- 
pose is  to  elucidate  and  settle  the  issues  raised  in  the  case 
and  to  confine  the  evidence  to  such  issues,  under  a  well 
devised  and  developed  system  of  limitations  that  experience 
has  shown  to  best  conserve  the  interests  of  all  concerned. 

In  every  criminal  case  the  burden  is  on  the  prosecution 
to  prove,  by  relevant  evidence,  (a)  that  the  offense  charged 
was  really  committed,  (6)  that  the  accused  committed  it,  and 
(c)  that  the  accused  had  the  requisite  criminal  intent  at  the 
time.  These  three  facts  broadly  constitute  the  issues  in  the 
case.  Incidental  issues  will  be  formed  by  the  necessity  for 
proof  of  the  essentials  of  an  offense.  Not  only  the  allega- 
tions set  out  in  the  charges  and  specifications,  but  the  com- 
ponent parts  of  such  allegations  as  well,  raise  the  issues  to 
be  decided.  For  instance,  in  a  case  of  larceny,  where  it  is 
charged  that  the  accused  "  did  take,  steal,  and  carry  away  " 
certain  articles  of  value,  the  component  parts  of  the  alle- 


153 


COTJRTS-MAKTIAL — EVIDENCE.  If    196 

gallon  not  specifically  set  out  are  that  such  articles  were 
taken  (a)  fraudulently  and  (b)  with  the  felonious  intent 
of  depriving  the  owner  of  them. 

196.  ANALYSIS  OF  EVIDENCE  BY  Trial  JUDGE  ADVOCATE  AND 
COUNSEL. — The  ends  of  justice  and  saving  of  time  of  all  con- 
cerned imperatively  demand  careful  analysis  by  both  trial 
judge  advocate  and  counsel  for  accused  of  the  evidence  re- 
quisite for  proof  of  and  defense  against  the  offenses  charged. 
As  a  prerequisite  to  such  analysis  the  law  as  to  the  offenses 
charged  should  be  studied  with  a  view  to  determining  the 
essential  elements  of  the  offense ;  that  is,  the  things  that  must 
be  proved  by  the  trial  judge  advocate  in  order  to  justify  a 
conviction  and  those  that  must  be  offered  by  the  defense  to 
disprove  or  place  in  reasonable  doubt  the  proof  offered  by  the 
prosecution.  In  other  words,  the  prosecution  and  defense 
should  limit  the  proffer  of  testimony  to  that  which  is  relevant 
to  these  issue's,  and  these  only,  and  should  prepare  the  case 
with  only  that  in  view.  The  essentials  of  the  offense  (see 
Chap.  XVII)  should  be  so  clearly  defined  in  the  preparation 
of  the  case  that  both  the  trial  judge  advocate  and  counsel 
for  accused  may  be  ready,  by  appropriate  objections  before 
the  court,  to  limit  the  introduction  of  evidence  to  relevant 
matter  only,  bearing  in  mind  that  only  the  essentials  of  the 
offense  must  be  proved  and  that  what  may  be  properly  con- 
sidered surplusage  may  be  disregarded. 

Before  trial  an  examination  of  all  the  sources  of  the  evi- 
dence to  be  submitted  should  be  made  by  the  trial  judge 
advocate  and  counsel  for  accused,  and  a  determination  as 
to  the  order  in  which  it  will  be  introduced  should  be  reached. 
The  case  should  be  presented  in  sequence  of  events  as  nearly 
as  possible,  just  as  a  story  would  be  told  by  one  party  who 
had  seen  everything  to  which  the  different  witnesses  will 
testify.  When  several  offenses  are  charged,  especially  if  un- 
related, the  evidence  should  be  directed  to  the  development 
of  their  proof  in  the  order  charged,  so  that  neither  the  court 
nor  the  accused  may  be  in  doubt  at  any  time  as  to  the  specific 
offense  to  which  the  testimony  being  given  refers.  Counsel 
for  accused  should  adhere  to  the  same  principle  in  present- 
ing evidence  for  the  defense. 


159 


T[    197  CHAPTER  XI. 

NOTE  1. — Wherever  the  phrase  "counsel  for  the  accused,"  or  any 
similar  phrase,  is  used  in  this  chapter,  or  elsewhere  in  this  Manual, 
it  is  to  be  understood,  unless  the  context  indicates  otherwise,  as 
including  both  the  defense  counsel  of  the  court  and  any  individual 
counsel  for  the  accused. 

NOTE  2. — It  is  the  duty  of  the  defense  counsel  to  begin  the  prep- 
aration of  the  case  for  trial  on  behalf  of  the  accused,  immediately 
upon  charges  being  referred  for  trial  to  a  court  of  which  he  is  the 
defense  counsel,  without  waiting  for  the  appointment  or  retaining  of 
any  individual  counsel;  and,  if  individual  counsel  be  afterwards 
assigned  or  retained,  to  give  him  the  benefit  of  such  preparation.  In 
case  individual  counsel  has  been  assigned  or  retained  prior  to  the  ref- 
erence of  the  case  for  trial,  the  defense  counsel  will,  if  the  accused 
desires,  cooperate  in  the  preparation  of  the  case  for  trial,  in  accord- 
ance with  the  provisions  of  A.  W.  17,  as  associate  counsel  for  the 
accused. 

197.  DUTIES  OF  COURT — OPENING  STATEMENTS. — If  the 
court  will  augment  the  preparation  invoked  in  the  preceding 
paragraph  by  constantly  bearing  in  mind  what  the  issues  are 
and  holding  the  trial  judge  advocate  and  counsel  strictly  to 
them,  it  will  tend  to  the  expedition  of  business,  the  securing 
of  justice,  and  the  conservation  of  the  interests  of  all  con- 
cerned. The  court  should  have  before  it  as  a  guide,  always 
by  reference  to  this  Manual  in  each  case,  the  following  essen- 
tial considerations  as  to  any  evidence  that  may  be  tendered : 
(1)  That  it  is  relevant  to  the  issue;  (2)  that  it  is  not  within 
the  rule  rejecting  hearsay  evidence;  (3)  that,  if  it  is  a  con- 
fession or  admission,  it  is  legally  admissible ;  (4)  that  where 
documents  are  used  the  original  should  be  obtained  (except 
when  a  copy  is  admissible)  and  that  the  genuineness  should 
be  verified;  (5)  that  any  witnesses  called  are  legally  compe- 
tent to  give  evidence;  (6)  that  the  examination  of  witnesses 
is  fairly  and  properly  conducted.  (Confer,  Brit.  M.  M.  M., 
Ch.  VI,  par.  105.) 

Further  reference  will  always  be  had  to  the  paragraphs 
of  the  Manual  that  set  out  the  gist  of  the  offenses  charged 
(see  Chap.  XVII) ,  and  these  will  be  read  to  the  court  in  each 
case  by  the  trial  judge  advocate  immediately  after  the  ac- 
cused has  pleaded  to  the  charges  and  specifications. 

It  will  be  appropriate  in  all  cases — and  in  an  important  or 
complicated  case  it  will  be  required  by  the  court — for  the 
trial  judge  advocate,  before  proceeding  with  the  introduc- 
tion of  evidence,  to  make  a  brief  statement  of  "  the  nature 

160 


COURTS -MARITAL — EVIDENCE.  ^f    198 

of  the  issues  to  be  tried  and  what  he  expects  to  prove"  (1 
Thompson  on  Trials,  246)  to  sustain  them.  Counsel  for  the 
accused  may  also  make  an  opening  statement  as  to  his  de- 
fense, either  just  following  the  statement  of  the  trial  judge 
advocate  or  just  after  the  trial  judge  advocate  has  rested  his 
case,  as  counsel  deems  better,  but  the  latter  course  is  cus- 
tomary. It  would  be  highly  reprehensible  for  either  trial 
judge  advocate  or  counsel  to  get  before  the  court  in  such 
opening  statement,  as  a  probable  means  of  influencing  its 
judgment,  matters  as  to  which  no  evidence  is  intended  to  be 
offered  or  as  to  which  it  is  known  that  the  evidence  to  be 
offered  is  clearly  inadmissible,  just  as  it  would  be  so  repre- 
hensible for  either  to  suggest  for  the  same  purpose,  by  ques- 
tions propounded  to  a  witness,  matters  known  not  to  exist 
or  that  the  rules  of  evidence  clearly  make  inadmissible. 

NOTE. — A  violation  by  the  trial  judge  advocate  of  the  rule  stated  in 
the  last  sentence  may  require  disapproval  of  the  findings  and  sentence 
of  the  court,  particularly  in  a  close  case. 

198.  RULES  OF  EVIDENCE  FOR  COURTS-MARTIAL. — Prior  to 
the  acts  of  August  29,  1916,  and  June  4,  1920  (A.  W.,  38), 
courts-martial  followed  in  general  the  rules  of  evidence,  in- 
cluding the  rules  as  to  competency  of  witnesses  to  testify, 
that  are  applied  by  Federal  courts  in  criminal  cases.  These 
consisted  of  the  rules  of  the  common  law  as  they  existed 
in  the  several  States  at  the  adoption  of  the  Federal  Consti- 
tution in  1789,  as  modified  from  time  to  time  by  subsequent 
acts  of  Congress.  But  courts-martial  were,  however,  not  re- 
quired by  express  statute  to  follow  these  rules,  and  had 
always  been  allowed  to  pursue  a  more  liberal  course  in  re- 
gard to  the  admission  of  testimony  than  do,  habitually,  the 
civil  tribunals.  Their  purpose  was  to  do  justice ;  and  if  the 
effect  of  a  technical  rule  was  found  to  be  to  exclude  material 
facts  or  otherwise  obstruct  a  full  investigation,  it  was  deemed 
that  the  rule  may  and  should  be  departed  from.  Proper 
occasions,  however,  for  such  departures  were  regarded  as  ex- 
ceptional and  unfrequent.  (Winthrop,  473.)  It  was  be- 
lieved that  "  courts-martial  had  much  better  err  on  the  side 
of  liberality  toward  a  prisoner  than,  by  endeavoring  to 
solve  nice  and  technical  refinements  of  the  laws  of  evidence, 
21358°— 20 11 

161 


If    199  CHAPTER  XI. 

assume  the  risk  of  injuriously  denying  him  a  proper  latitude 
for  defense."  (G.  C.  M.  O.  32,  1872;  see  3  Grecnleaf,  sees. 
469,  476.)  But  now,  by  the  provisions  of  the  acts  of  August 
29,  1916,  and  June  4,  1920  (A.  W.  38)  : 

"  The  President  may,  by  regulations,  which  he  may  modify  from 
time  to  time,  prescribe  the  procedure,  including  modes  of  proof,  in 
cases  before  courts-martial,  courts  of  inquiry,  military  commissions, 
and  other  military  tribunals,  which  regulations  shall,  in  so  far  as  he 
shall  deem  practicable,  apply  the  rules  of  evidence  generally  recog- 
nized in  the  trial  of  criminal  cases  in  the  district  courts  of  the 
United  States:  Provided,  That  nothing  contrary  to  or  inconsistent 
with  these  articles  shall  be  so  prescribed:  Provided  further,  That  all 
rules  made  in  pursuance  of  this  article  shall  be  laid  before  the  Con- 
gress annually." 

The  modes  of  proof,  therefore,  including  the  rules  of 
admissibility  for  testimony  of  witnesses  and  other  evidence, 
are  now  by  express  congressional  enactment  placed  under 
the  authority  of  Executive  regulation;  and  the  rules  laid 
down  in  this  Manual  have  the  force  of  such  regulation. 
They  therefore  form  the  only  binding  rules,  except  such 
rules  of  evidence  as  are  expressly  prescribed  (1)  in  the 
Articles  of  War;  (2)  in  the  Federal  Constitution;  and  (3) 
in  such  Federal  statutes  as  expressly-  mention  courts-martial. 

199.  RULES,  WHERE  FOUND. — The  common-law  rules  of 
evidence,  with  their  legislative  modifications,  form  the  basis 
of  the  present  regulations.  These  rules  have  been  the  sub- 
ject of  much  interpretation  by  the  courts,  which  will  be 
found  in  the  published  decisions  of  such  courts.  While  re- 
sort to  textbooks  and  decisions  will  sometimes  be  necessary  in 
the  trial  of  an  especially  difficult  case,  it  is  the  purpose  of  this 
chapter  to  state  the  rules  of  evidence  applicable  to  trials  by 
courts-martial  in  sufficient  fullness  to  cover  the  field  in  prac- 
tically all  cases.  Where  the  rule  herein  laid  down  is  clear  it 
should  be  taken  as  law  (subject  to  the  discretionary  relaxa- 
tion noted  in  par.  198),  unless  modified  by  Federal  statute  or 
some  decision  of  the  Federal  courts  thereunder  made  since 
the  date  of  the  publication  of  this  Manual. 

Where,  in  the  preparation  of  a  case,  the  trial  judge  advo- 
cate or  counsel  finds  that  the  rules  laid  down  in  this  chapter 
are  not  sufficiently  specific  clearly  to  settle  a  specially  impor- 
tant question  as  to  the  competency  of  a  witness  to  testify  or 

162 


COURTS-MARTIAL — EVIDENCE.  ^f    200 

as  to  the  admissibility  of  evidence  intended  to  be  introduced 
or  likely  to  be  offered  against  him,  he  should  secure  in  ad- 
vance of  the  trial  and  have  with  him  in  court  authorities  to 
sustain  his  contentions  for  such  admission  or  exclusion. 

But  it  should  be  kept  in  mind  that  the  use  of  such  au- 
thorities is  merely  to  inform  the  court  of  the  reason  of  a 
rule  or  the  good  sense  and  fairness  of  a  proposed  ruling, 
and  not  to  control  the  decision  of  the  court  with  binding 
effect.  This  caution  rests  on  two  grounds  of  principle :  First, 
because  the  State  decisions  and  statutes  and  the  writers  of 
treatises  never  have  had  any  binding  effect  on  courts-martial, 
the  Federal  statutes  and  decisions  being  the  only  ones  that 
are  entitled  to  such  effect;  and,  secondly,  because  since  the 
Federal  statutes -of  August  29,  1916,  and  June  4,  1920  (A. 
W.  38),  the  modes  of  proof  in  courts-martial  are  governed 
by  regulations -issued  by  presidential  order,  as  explained  in 
paragraph  198,  supra, 

200.  KULES  OF  EVIDENCE  TO  BE  APPLIED  IRRESPECTIVE  OF 
HANK. — The  rules  of  evidence  should  be  applied  by  military 
courts  irrespective  of  the  rank  of  the  person  to  be  affected. 
Thus  a  witness  for  the  prosecution,  whatever  be  his  rank  or 
office,  may  always  be  asked  on  cross-examination  whether  he 
has  not  expressed  animosity  toward  the  accused,  as  well  as 
whether  he  has  not  on  a  previous  occasion  made  a  statement 
contradictory  to  or  materially  different  from  that  embraced 
in  his  testimony.     Such  questions  are  admissible  by  the  es- 
tablished law  of  evidence  and  imply  no  disrespect  to  the 
witness,  nor  can  the  witness  properly  decline  to  answer  them 
on  the  ground  that  it  is  disrespectful  to  him  thus  to  attempt 
to  discredit  him.     (Digest,  p.  529,  XI,  A,  3.) 

201.  PROTECTION  OF  WITNESSES. — It  is  the  duty  of  the  court 
to  protect  every  witness  from  irrelevant,  insulting,  or  im- 
proper questions;  from  harsh  or  insulting  treatment;  and 
from  unnecessary  inquiry  into  his  private  affairs.     The  court 
must   forbid  any  question  which  appears  to  be  intended 
merely  to  insult  or  annoy  a  witness,  or  which,  though  proper 
in  itself,  appears- to  be  needlessly  offensive  in  form. 

202.  EVIDENCE  MUST  BE  MATERIAL  AND  RELEVANT. —  (1) 
Evidence  to  be  admissible  must  be  not  only  competent  and 


163 


If    202  CHAPTER  XI. 

material,  but  relevant  to  the  issues  in  the  case.  Evidence 
is  not  material  when  the  fact  which  it  aims  to  prove  is  not 
a  part  of  the  issues  in  the  case.  Evidence  is  not  relevant 
when,  though  the  fact  which  it  aims  to  prove  is  material, 
yet  the  evidence  itself  is  too  remote  or  far-fetched  to  have 
any  probative  value  for  that  purpose. 

(2)  Where  evidence  is  apparently  irrelevant  it  may,  how- 
ever (but  only  rarely  and  under  exceptional  circumstances),  be 
admitted  provisionally  upon  a  statement  of  the  trial  judge 
advocate  or  counsel  that  other  facts  later  to  be  proved  will 
show  its  relevancy,  but  the  court  should  afterwards  exclude 
it  if  its  relevancy  is  not  ultimately  shown.. 

NOTE. — Resort  should  rarely  be  had  to  the  practice  of  allowing 
either  side  to  introduce  apparently  irrelevant  evidence,  upon  a  promise 
to  connect  it  up  later.  It  frequently  leads  to  controversy  as  to  whether 
the  promise  has  been  made  good,  and  often  results  in  getting  improper 
matter  into  the  record,  which  may  sometimes  require  a  disapproval  of 
the  findings  and  sentence  of  the  court.  It  is  always  safer,  and  will 
usually  be  found  to  save  time  and  shorten  the  record  in  the  end,  to 
require  the  party  offering  the  evidence  to  first  prove  the  facts  showing 
its  relevancy.  He  may,  for  that  purpose,  be  permitted  to  temporarily 
withdraw  a  witness  or  witnesses  and  to  fecall  one  or  more  witnesses 
who  have  been  partially  examined. 

(3)  Indirect  evidence  is  known  as  circumstantial  evidence, 
and  signifies  merely  any  and  all  evidence  which  is  not  testi- 
monial; i.  e.,  the  assertion  of  a  witness  or  other  person. 
For  example,  on  a  charge  of  larceny  of  a  wallet,  the  state- 
ment of  a  witness  that  he  saw  the  accused  take  the  wallet 
from  the  owner's  overcoat  is  testimonial  evidence ;  the  find- 
ing of  the  wallet  hidden  in  the  blanket  belonging  to  the 
accused  is  circumstantial  evidence.     Obviously  a  fact  consti- 
tuting circumstantial  evidence  must  itself  usually  be  proved 
in  its  turn  by  testimonial  evidence ;  for  example,  the  finding 
of  the  wallet  as  indicated  above  would  be  evidenced  by  a 
sergeant's  testimony  that  he  searched  the  accused's  blanket 
and  found  the  wallet. 

(4)  Testimonial  evidence  is  thus  classed  by  itself,  because 
the  weight  to  be  given  to  testimony  is  subject  to  a  group  of 
considerations  which  affect  all  human  assertions  alike,  as  dis- 
tinguished from  circumstantial  evidence  which  is  of  infinite 


164 


COURTS-MARTIAL — EVIDENCE.  ^f    20  2  a 

varieties  having  relatively  few  features  in  common  with  each 
other. 

202a.  Court-Martial  Should  Reject  Improper  Evidence  Al- 
though Not  Objected  To. — A  court-martial  should  refuse  to  re- 
ceive improper  evidence,  either  testimonial  or  documentary,  even 
though  not  objected  to  by  the  accused.  The  reception  of  im- 
proper evidence  may  be  so  injurious  to  the  substantial  rights 
of  the  accused  as  to  require  disapproval  of  the  findings  and  sen- 
tence of  the  court,  even  though  it  was  not  objected  to  by  the 
defense. 

(C.  M.  No.  134116,  Woodland,  Dec.  11,  1S19;  C.  M.  No.  116667, 
Partridge,  July  11,  1918;  C.  M.  No.  132922,  Davis,  Nov.  18,  1919; 
C.  M.  No.  128323,  Woodin,  Apr.  16,  1919;  C.  M.  No.  134057,  Massey, 
Sept.  20,  1919.) 

SECTION  II. 
CIRCUMSTANTIAL  EVIDENCE. 

203.  CIRCUMSTANTIAL  EVIDENCE. — Circumstantial  evidence 
is  not  resorted  to  as  a  secondary  or  inferior  species;  i.  e.,  be- 
cause there  is  an  absence  of  direct  or  testimonial  evidence. 
It  is  introduced  even  when  there  is  direct  evidence.  Cir- 
cumstantial evidence  may  furnish  a  safe  and  satisfactory 
ground  for  belief,  while  on  the  other  hand  direct  or  testi- 
monial evidence  may  leave  the  court  in  doubt.  The  proper 
effect  of  circumstantial  as  compared  with  direct  evidence 
has  been  stated  as  follows : 

When  circumstances  connect  themselves  closely  with  each 
other,  when  they  form  a  large  and  strong  body  so  as  to 
carry  conviction  to  the  minds  of  a  jury,  it  may  be  proof  of 
equal  or  even  more  satisfactory  sort  than  that  which  is  direct. 
In  some  lamentable  instances  it  has  been  known  that  a 
short  story  has  been  got  by  heart  by  two  or  three  witnesses ; 
they  have  been  consistent  with  themselves,  they  have  been 
consistent  with  each  other,  swearing  positively  to  a  fact, 
which  fact  has  turned  out  afterwards  not  to  be  true.  It  is 
almost  impossible  for  a  variety  of  witnesses,  speaking  to  a 
variety  of  circumstances,  so  to  concoct  a  story  as  to  impose 
upon  a  jury  by  a  fabrication  of  that  sort,  so  that  where  a 
chain  of  circumstances  is  cogent,  strong,  and  powerful,  where 


165 


^204  CHAPTER  XT. 

the  witnesses  do  not  contradict  each  other  or  do  not  con- 
tradict themselves,  it  may  be  evidence  more  satisf  actory  than 
even  direct  evidence,  and  there  are  more  instances  than  one 
where  that  has  been  the  case.  (Wiginore,  sec.  26.)  In  a 
case  depending  upon  circumstantial  evidence  the  court,  in 
order  to  convict,  must  find  the  circumstances  to  be  satisfac- 
torily proved  as  facts,  and  must  also  find  that  those  facts 
clearly  and  unequivocally  imply  the  guilt  of  the  accused 
and  can  not  reasonably  be  reconciled  with  any  hypothesis 
of  his  innocence.  (Davis,  p.  265.) 

204;  ILLUSTRATION  OF  DIFFERENCE  BETWEEN  GOOD  AND  BAD 
CIRCUMSTANTIAL  EVIDENCE. — The  accused  is  charged  with 
stealing  clothes  from  the  locker  of  a  comrade.  The  following 
circumstances  are  not  admissible  as  circumstantial  evidence : 

(1)  The  accused  is  very  much  disliked  by  other  mem- 

bers of  his  company. 

(2)  A  number  of  thefts  from  comrades  have  taken 

place  in  the  company,  and  the  general  belief  in 
the  company  is  that  he  was  connected  with 
them. 

(3)  He  was  tried  once  before  for  larceny  of  clothes 

from  a  comrade  and  was  convicted. 

(4)  He  is  suspected  of  being  a  deserter  from  a  foreign 

army. 

(5)  He  belongs  to  a  race  or  enlisted  in  a  locality  that 

does  not  entertain  very  strict  notions  of  right 
'  and  wrong  as  to  the  manner  of  acquiring  pos- 
session of  property. 

But  the  following  series  of  circumstances  should  be  ad- 
mitted in  evidence : 

(1)  The  clothes  were  taken  while  the  company  was  at 

drill,  and  there  was  no  one  known  to  have  been 
in  the  room  where  the  locker  was. 

(2)  The  accused  was  not  at  drill,  but  was  detailed  as 

kitchen  police  that  day. 

(3)  He  was  absent  from  his  duty  as  kitchen  police  a 

short  while  during  the  time  when  the  clothes 
disappeared. 

(4)  One  of  the  articles  stolen  was  found  in  the  locker 

of  the  accused. 

166 


COURTS-MARTIAL — EVIDENCE.  f    205 

(5)  The  accused  was  known  to  be  without  money  the 

day  before  the  larceny,  and  that  evening  left  the 
post  with  a  bundle  under  his  arm  and  was  seen 
to  enter  a  certain  house  and  the  same  night  had 
money  in  his  possession. 

(6)  Upon  the  house  being  searched  next  day  most  of 

the  missing  clothes  were  found  there. 

(7)  The  person  found  in  the  house  identified  the  ac- 

cused as  the  one  from  whom  he  had  purchased 
the  missing  clothes. 

205.  Accused's  Bad  Character. — A  fundamental  rule  is  that 
the  prosecution  may  not  evidence  the  doing  of  the  act  by  invok- 
ing the  accused's  bad  moral  character  or  former  misdeeds  as  a 
ground  of  probability  for  his  guilt  of  the  offense  charged.     This 
forbids  any  resort  to  his  bad  character  in  any  form,  either  by 
general  repute  or  by  personal  opinions  of  individuals  who  know 
him.     The  rule  is  based  on  the  well-known  tendency  of  human 
nature  to  find  an  accused  guilty  without  positive  belief  in  his 
present  guilt,  but  because  of  the  prejudice  caused  by  his  former 
bad  record.     This  rule  also  forbids  any  reference  in  the  evi- 
dence to  former  specific  offenses  or  other  acts  of  misconduct, 
whether  he  has  or  has  not  ever  been  tried  and  convicted  of 
their  commission.     All  attempt  to  evidence  guilt  of  the  present 
charge  by  resort  to  the  accused's  moral  disposition,  whether 
shown  by  repute  or  by  specific  former  misdeeds,  must  be  rigor- 
ously avoided. 

206.  Same — Exceptions. — There    are,    however,    four    contin- 
gencies in  which  the  prosecution  may  resort  to  the  accused's  bad 
character  or  specific  prior  misdoings,  partly  by  way  of  excep- 
tion to  the  foregoing  rule  and  partly  as  falling  outside  its  scope : 

1.  If  the  accused  offers  his  own  good  character  to  show 

the  probability  of  his  innocence,  the  prosecution 
may  dispute  the  fact  of  such  good  character  by  offer- 
ing in  rebuttal  the  reputation  of  the  accused  in  his 
organization  as  to  the  bad  quality  in  question. 

2.  If  the  accused  takes  the  stand  as  a  witness,  his  moral 

character  for  credibility  as  a  witness  (par.  257) 
may  be  evidenced  in  rebuttal. 

3.  If  the  accused  is  found  guilty,  then  his  service  record 

may  be  made  known  to  the  court,  as  provided  in 

167 


If    206  CHAPTER  XI. 

paragraphs  271,  306,  and  307,  subject  to  the  provi- 
sions of  Article  V  of  the  Executive  order  concerning 
maximum  punishments  (par.  349  infra). 
4.  If  the  intent  or  motive  or  plan  or  guilty  knowledge 
of  the  accused  is  material  under  the  issues  of  the 
case,  all  his  prior  conduct  tending  to  show  his  mo- 
tive or  intent  or  other  state  of  mind  at  the  time 
of  the  act  charged  becomes  relevant;  and  thus  this 
conduct  may  include  various  acts  which  in  them- 
selves are  immoral  or  criminal.     In  such  case  the 
fact  that  such  an  act  is  criminal  or  immoral  does 
not  prevent  its  admission,  even  though  incidentally 
the  act  might  reflect  upon  the  moral  character  of 
the  accused.    The  consideration  of  such  conduct  in 
order  to  reach  a  conclusion  as  to  the  accused's  in- 
tent or  motive  is  necessary;  but  the  court  should 
reject  from  its  mind  any  bearing  of  such  conduct 
on  the  accused's  general  trait  of  bad  character. 
This  distinction  is  fundamental.     It  may  be  illustrated  as 
follows : 

(a)  On  a  charge  of  wrongfully  disposing  of  Government 

property,  viz,  one  blanket,  by  selling  it  to  a 
civilian  (the  fact  of  the  sale  being  proved),  the 
accused's  conduct  on  recent  former  occasions  in 
offering  for  sale  a  pistol  and  a  saddle  to  the  same 
or  other  persons  may  be  offered  to  show  his  wrong- 
ful intent  at  the  time  of  the  act  charged. 

(b)  On   a   charge   of  assaulting  a  fellow  soldier  with 

intent  to  wound,  a  former  assault  on  another  sol- 
dier six  months  before  and  under  entirely  different 
circumstances  would  not  be  admissible,  having  no 
bearing  on  the  intent  in  the  case  charged. 

(c)  On  a  charge  of  attempt  to  desert,  the  fact  that  the 

accused  had  recently  assaulted  and  beaten  another 
soldier  and  was  under  arrest  awaiting  trial  would 
be  admissible  to  evidence  a  probable  motive  to 
attempt  to  desert. 

(d)  On  a  charge  of  falsification  of  accounts  of  stores, 

the  fact  that  the  accused  had  embezzled  some  of 
the  same  stores,  if  offered  to  evidence  a  motive 

168 


COUKTS-MAETIAL — EVIDENCE.  If    207 

for  concealing  the  embezzlement  by  falsifying  ac- 
counts, would  be  admissible;  but  a  conviction  of 
falsification  before  enlistment  in  a  totally  distinct 
transaction  would  be  inadmissible  as  bearing 
solely  upon  his  general  moral  character  and  not 
upon  his  present  intent  or  motive. 

SECTION  III. 
TESTIMONIAL  EVIDENCE. 

207.  TESTIMONIAL  EVIDENCE. — Testimonial  evidence  is  the 
statement  of  some  person  offered  as  evidencing  the   fact 
asserted  by  it.    For  example,  a  statement  that  a  rifle  was  dis- 
charged at  a  certain  hour  and  place  is  testimonial  evidence 
that  it  was  so  discharged. 

Such  statements  may  be  made  either  in  court  or  out  of 
court.  If  made  in  court  as  a  witness,  then  the  witness  must 
be  "  competent."  If  made  out  of  court,  then  even  if  the  person 
making  it  is  competent,  the  statement  is  not  admissible,  be- 
cause the  hearsay  rule  forbids.  (See  par.  221  infra.) 

The  competency  of  the  witness  is  therefore  the  important 
thing  to  determine  before  admitting  testimonal  evidence. 

208.  COMPETENCY  RULE  IN  GENERAL. — The  modern  tend- 
ency, as  evidenced  to  a  great  extent  by  statutes  of  different 
States,  and  to  a  limited  extent  by  Federal  statutes,  is  to 
recognize  practically  no  grounds  for  incompetency,  but  to 
admit  the  material  and  relevant  testimony  of   a   witness 
offered  by  either  side  and  leave  his  credit  to  be  estimated 
according  to  all  the  circumstances. 

209.  Elements  of  COMPETENCY  OF  WITNESS. — The  compe- 
tency of  a  witness  depends  upon  several  elements,  which 
may  be  divided  thus:   (1)   His  general  moral  and  mental 
capacity;  (2)  his  special  expertness  in  subjects  on  which  ex- 
pertness  is  required;  (3)  his  knowledge  of  the  specific  facts 
on  which  he  testifies. 

210.  GENERAL  CAPACITY  OF  WITNESS. — The  general  capac- 
ity, mental  and  moral,  of  an  adult  witness  is  always  pre- 
sumed; i.  e.,  the  party  must  always  prove  to  the  court  the 
specific  ground  of  incapacity  or  else  the  witness  should  be 
allowed  to  testify. 


169 


f  210a  CHAPTER  xi. 

210a.  CHILDREN  AS  WITNESSES. — The  admissibility  of  chil- 
dren as  witnesses  is  not  regulated  by  their  age,  but  by  their 
apparent  sense  and  understanding.  The  court  may,  in  its  dis- 
cretion, receive  the  testimony  of  any  child,  regardless  of  age, 
and  give  it  such  weight  as  it  may  appear  to  deserve;  provided, 
only  that,  in  the  opinion  of  the  court,  the  child  understands  the 
moral  importance  of  telling  the  truth,  for  which  purpose  the 
court  may  examine  the  child. 

NOTE. — This  abolishes,  for  courts-martial,  the  technical  common-law 
rules  as  to  the  competency  of  children.  The  admission  of  the  testi- 
mony amounts  to  a  statement  of  the  court's  opinion  that  the  child 
understands  the  moral  importance  of  telling  the  truth,  and  makes  tho 
testimony  prima  facie  competent. 

211.  MORAL  INCAPACITY  OF  WITNESS. — Moral  incapacity 
was  recognized  in  the  common-law  rule  that  rendered  in- 
competent as  a  witness  any  person  convicted  of  treason, 
felony,  or  the  crimen  falsi. 

But  tliis  incapacity  has  long  been  abolished  in  almost  all 
the  States,  except  that  several  retain  it  with  a  restriction  to 
convictions  for  perjury.  In  courts-martial,  conviction  of 
any  offense  does  not  disqualify  a  witness.  But  it  may,  of 
course,  be  shown  to  dimmish  his  credit.  (See  "Credibility 
of  Witnesses,  Sec,  VI,  infra.) 

212.  MENTAL  INCAPACITY  or  WITNESS. — Mental  incapacity 
is  a  disqualification,  but  only  to  a  limited  extent,  as  follows : 
Insanity  or  intoxication  may  disqualify,  but  only  to  the  ex- 
tent to  which  they  affect  the  subject  of  the  testimony.     For 
example  a  religious  hallucination  as  to  angels  saving  a  man 
from  bullets  does  not  disqualify  the  person  from  testifying 
us  to  the  time  of  lighting  a  camp  fire  or  the  persons  on  duty 
at  a  certain  post.     But  such,  hallucinations,  like  general  inac- 
curacy  of   memory   ox   comprehension,    liability   to   occasional 
lapses  of  memory,  mental  defect,  and  the  like,  may  fee  inquired 
into,  on  cross-examination,  as  affecting  the  general  accuracy  and 
credibility  of  the  witness. 

213.  INTEREST  OR  BIAS. — Interest  or  bias   does  not  dis- 
qualify; i.  e.,  the  fact  that  a  person  owes  a  party  money  or 
has  a  property  interest  with  or  against  a  party  does  not 
disqualify  him  from  testifying  for  or  against  that  party. 


170 


COURTS-MARTIAL — EVIDENCE.  II    214 

A  person  who  is  a  relative  or  an  avowed  enemy  of  the  accused 
is  not  disqualified  from  testifying  for  or  against  the  accused. 
The  weight  of  such  testimony  when  admitted  is  a  different 
matter.  (See  "Credibility  of  Witnesses,"  Sec.  VI,  infra.) 

Marital  relationship  was  a  disqualification  at  common 
law.  Except  in  certain  cases,  husband  or  wife  could  not 
testify  either  for  or  against  one  another.  This  rule  has  been 
abolished  in  most  States.  In  courts-martial  the  rule  is  as 
follows: 

(1)  Wife  or  husband  of  an  accused  may  testify  on 

behalf  of  the  accused  without  restriction. 

(2)  Wife  or  husband  of  an  accused  may  not  be  called 

to  testify  against  the  accused  without  the  con- 
sent of  both  accused  and  witness,  unless  on  a 
charge  of  an  offense  committed  by  the  accused 
against  the  witness.  (See  par.  228.) 

(3)  Wife  or  husband  of  any  person  may  not  testify 

to  confidential  communications  of  the  other, 
unless  the  other  give  consent. 

The  last  two  rules  are  rules  of  privilege  and  are  more 
fully  stated  under  "  Privilege."  (See  pars.  227  et  seq.) 

214.  WHEKE  ACCTTSED  Is  WTTXESS. — It  was  provided  by  act 
of  Congress  of  March  16,  1878  (20  Stat.  30),  that  in  trials 
by  courts-martial  and  courts  of  inquiry  as  well  as  by  United 
States  courts  and  Territorial  courts,  the  accused  "  shall  at 
his  own  request^  but  not  otherwise,  be  a  competent  witness," 
and  that  "  his  failure  to  make  such  request  shall  not  create 
any  presumption  against  him." 

(a)  An  accused  person  thus  may,  at  his  option,  take  the 
stand  as  a  witness,  and  in  doing  so  he  occupies  no  exceptional 
status  and  becomes  subject  to  cross-examination  like  any 
other  witness.  The  same  rules  as  to  the  aclmissibility  of  evi- 
dence, privilege  of  the  witness,  impeaching  of  his  credit,  etc., 
will  apply  to  him  as  to  any  other  witness,  and  the  only  notice- 
able difference  between  his  examination  and  that  of  other 
witnesses  will  be  that  he  will  in  general,  naturally  and  prop- 
erly, be  exposed  to  a  more  searching  cross  examination. 
(Winthrop,  507.)  So  far  as  the  latitude  of  the  cross-ex- 
amination is  discretionary  with  the  court,  a  greater  lati- 


^f    215  CHAPTER  XI. 

tude  may  properly  be  allowed  in  his  cross-examination  than 
in  that  of  other  witnesses.     (Id.,  545.) 

(b)  When  the  accused  testifies  in  denial  or  explanation  of 
any  offense,  the  scope  of  his  direct  examination  (under  para- 
graph 251)  is  considered  to  be  the  whole  subject  of  his  guilt 
or  innocence  of  that  offense.    Any  fact  relevant  to  the  issue 
of  his  guilt  or  relevant  to  his  credit  as  a  witness,  is  properly 
the  subject  of  cross-examination. 

(c)  If  he  fails  to  take  the  stand  at  all,  this  failure  must  not 
be  commented  on,  for  such  comment  would  violate  his  privilege 
to  remain  silent  (par.  251).    But  if  he  testifies  and  if  he  fails 
in  such  testimony  to  deny  or  explain  specific  facts  of  an  in- 
criminating nature  that  the  evidence  of  the  prosecution  tends 
to  establish  against  him,  such  failure  may  not  only  be  com- 
mented upon  by  counsel,  but  may  be  considered  by  the  court, 
with  all  the  other  circumstances,  in  reaching  their  conclusion 
as  to  his  guilt  or  innocence.     (Caminetti  v.  U.  S.,  242  U.  S., 
470,  493. )     Where,  however,  an  accused  is  on  trial  for  a  num- 
ber of  offenses,  and,  taking  the  stand  in  his  own  defense, 
testifies  to  one  or  more  of  them  only,  he  can  not  be  cross- 
examined  as  to  the  others,  and  no  comment  can  be  made  or 
inference  drawn  from  his  failure  to  testify  as  to  the  others. 

215.  PROCEDURE  WHERE  ACCUSED  FAILS  TO  TESTIFY  OR 
MAKE  A  STATEMENT. — In  each  case  tried  by  a  court-martial 
in  which  the  accused  does  not  testify  or  make  any  statement 
in  his  own  behalf,  it  shall  appear  on  record  that  the  presi- 
dent or  law  member  of  the  court  (see  pars.  89  and  89a),  or  the 
summary  court,  explained  to  the  accused  that  he  may  testify 
in  his  own  behalf  if  he  so  desire,  or  may  make  an  unsworn 
statement  to  the  court  in  denial,  in  explanation,  or  in  exten- 
uation of  the  offense  with  which  he  stands  charged.  In  every 
case  tried  by  general  court-martial,  or  by  special  court-martial 
where  the  evidence  is  recorded,  the  explanation  by  the  presi- 
dent or  law  member  and  the  reply  of  the  accused  thereto  shall 
appear  upon  the  record  of  trial.  (See  form,  Appendix  9.)  In 
other  cases  tried  by  special  court-martial,  and  in  cases  tried  by 
summary  court-martial,  the  fact  of  such  explanation  being  given 
in  the  form  prescribed  in  Appendix  9  to  this  Manual  will  be 
noted  in  the  record  or  report  of  trial. 


172 


COURTS-MAKT1AL — EVIDENCE.  ^f    216 

216.  EFFECT  OF  TURNING  STATE'S  EVIDENCE. — The  fact  that 
an  accomplice  turns  state's  evidence  does  not  make  him  im- 
mune from  trial,  unless  immunity  has  been  promised  him 
by  the  authority  competent  to  order  his  trial.     But,  if  an 
accomplice  goes  on  the  stand  and  makes  a  full  and  frank 
statement  of  the  circumstances  of  the  offense,  it  is  customary 
to  pardon  his  offense,  or  impose  upon  him  a  milder  punish- 
ment than  upon  his  accomplices. 

217.  COMPETENCY  OF  ACCUSED  WHEN  TESTIFYING  AGAINST 
AN  ACCOMPLICE. — An  accused  who  is  one  of  two  or  more  per- 
sons concerned  in  an  offense  is  always  competent  to  testify, 
whether  he  be  charged  jointly  or  separately,  and  whether  he  be 
tried  jointly  or  separately,  and  whether  he  be  called  for  the 
prosecution  or  for  the  defense.     He  can  not,  however,  be  called 
except  upon  his  own  request,  since  he  is  privileged  not  to  in- 
criminate  himself    (par.   233),   and  therefore,   unless  he  first 
waives  the  privilege  and  elects  to  testify,  can  not  be  called  or 
used  as  a  witness  by  either  side.     (See  also  par.  224,  infra.) 

NOTE  1. — This  abolishes,  for  courts-martial,  the  ancient  common- 
law  rule  that  any  person  charged  with  complicity  was  interested  in 
the  event  of  the  trial,  and  was  therefore  disqualified,  whether  he 
sought  to  testify  for  the  prosecution  or  for  the  defense,  under  which 
resort  was  formerly  necessary  to  various  expedients  when  the  prosecu- 
tion desired  to  use  the  testimony  of  an  accused;  e.  g.,  entering  a 
nolle  prosequi,  directing  an  acquittal,  or  placing  him  on  trial  sepa- 
rately. 

NOTE  2. — This  does  not  prevent  entering  a  nolle  prosequi  or  a  find- 
ing of  "  not  guilty  "  as  to  any  particular  accused  in  those  exceptional 
cases  where  it  becomes  necessary  to  call  one  of  the  oifenders,  against 
his  will,  and  thus  secure  his  testimony  for  the  purpose  of  convicting 
others.  While  this  course  will  not  be  encouraged,  and  will  not  be 
adopted  without  the  authority  of  the  convening  authority,  it  may 
sometimes  be  the  only  means  of  obtaining  the  necessary  evidence  to 
convict  the  ringleaders  in  a  conspiracy  or  other  joint  crime. 

218.  EXPERT  CAPACITY. — On  most  matters  the  ordinary  ex- 
perience of  any  adult  qualifies  him  to  observe  and  testify. 
Hence,  all  persons  are  ordinarily  qualified  to  testify  on  ordi- 
nary matters.     But,  when  the  subject  is  one  upon  which 
special  experience  is  required,  it  will  not  be  presumed  that  a 
witness  possesses  such  special  experience,  for  ordinarily  he 
does  not.     Hence  a  witness  called  upon  such  a  subject  must 


173 


^    219  CHAPTER   XI. 

be  shown  to  possess  such  special  experience;  he  is  therefore 
called  an  "expert"  on  that  subject.  A  person  may  be  an 
e-xpirt  on  one  subject  but  not  on  another.  Hence,  whenever 
such  a  topic  calls  for  testimony,  the  witness's  special  expe- 
rience in  it  must  first  be  shown.  Whether  a  piece  of  leather 
has  been  recently  tanned;  whether  a  stain  is  human  blood 
or  animal  blood,  are  instances  of  topics  which  might  well 
require  experts,  if  important  to  the  issue. 

In  applying  this  rule  pedantry  would  be  out  of  place. 
Experts  on  all  subjects  are  seldom  within  reach  of  a  court- 
martial,  and  liberality  of  application  is  a  necessity.  Good 
sense  and  ordinary  caution  will  determine  whether  an  expert 
is  needful  for  accurate  discovery  of  the  truth.  For  example, 
an  expert  in  alcohol  would  hardly  be  needed  to  testify  to 
whether  the  contents  of  a  certain  bottle  were  sufficiently 
alcoholic  to  be  intoxicating,  but  in  a  homicide  case,  where 
the  cause  of  death  was  disputed,  obviously  a  medical  man's 
testimony  should  be  secured. 

219.  Insanity  or  Mental  Defect  or  Derangement  of  Accused. — 
(a)  The  questions  whether  (1)  the  accused  was  of  such  mental 
condition  as  to  be  not  legally  responsible  for  the  act  or  omission 
charged,  if  committed,  or  (2)  is  mentally  so  defective  or  de- 
ranged as  to  render  inadvisable  his  punishment  for  crime,  or  as 
to  render  him  (3)  mentally  incapable  of  conducting  his  defense 
intelligently,  may  be  raised  orally  on  the  trial  at  any  time  before 
sentence,  without  any  special  plea  or  other  formality,  either  by 
any  member  of  the  court,  by  the  trial  judge  advocate,  the  de- 
fense counsel  or  other  counsel  for  the  accused,  or  by  the  accused 
himself.  The  court  may  then,  in  its  discretion,  suspend  other 
proceedings  for  the  examination,  hearing  and  consideration  of 
the  matter  of  the  mental  condition  of  the  accused,  and  proceed 
to  determine,  in  accordance  with  the  thirty-first  article  of  war 
(see  pars.  89  and  89a,  supra),  whether  the  existence  of  mental 
disease  or  mental  derangement  on  the  part  of  the  accused  has 
become  an  issue  in  the  trial. 

(b)  Whenever  it  is  so  determined  that  such  question  has  be- 
come an  issue  in  the  trial,  then  upon  such  issue  the  burden  of 
proof  is  upon  the  prosecution  to  establish,  to  the  satisfaction  of 
the  court,  the  mental  condition  of  the  accused,  both  at  the  time 


174 


COURTS-MARTIAL — EVIDENCE.  ^f    219 

of  the  alleged  offense  and  at  the  time  of  the  trial,  and  the  presi- 
dent of  a  special  court-martial  or  of  a  general  court-martial  in 
the  absence  of  the  law  member,  or  the  law  member  of  a  general 
court-martial  if  present,  as  the  case  may  be,  will  so  advise  the 
trial  judge  advocate;  and,  if  there  is  in  the  case  a  report  of  a 
medical  board  under  paragraph  76c,  supra,  such  report  will  bs 
read  in  evidence  on  behalf  of  the  court,  and  (unless  the  court, 
and  also  both  the  trial  judge  advocate  and  cou]osel  for  the  ac- 
cused, as  well  as  the  accused  himself,  think  it  unnecessary,  and 
accordingly  waive  it)  at  least  one  of  the  members  of  such  medi- 
cal board  will  be  called  as  a  witness  for  the  court,  to  be  thor- 
oughly examined,  as  if  on  cross-examination,  by  counsel  for  the 
accused,  and  also  by  the  trial  judge  advocate  and  by  any  mem- 
bers of  the  court,  as  to  any  feature  cf  the  report ;  and  on  request 
of  the  accused  the  remaining  members  of  the  board  shall,  if 
available,  likewise  be  called  as  witnesses  for  the  court,  for  such 
cross-examination. 

(c)  But  if  there  is  in  the  case  no  report  of  a  medical  board 
under  the  previsions  of  paragraph  76c,  supra,  the  court  may,  in 
its  discretion,  and  will  in  every  case  where  it  appears  to  the 
court  that  there  is  reason  to  believe  that  the  accused  may  be 
(or  may  have  been  at  the  time  of  the  alleged  offense)  mentally 
defective  or  deranged,  either  temporarily  or  permanently,  stop 
the  proceedings  and  continue  the  case,  and  immediately  report 
the  facts  to  the  convening  authority  with  a  request  that  a 
medical  board  be  convened.    In  considering  the  question  of  so 
requesting  a  medical  board,  a  court-martial  may  receive  in  evi- 
dence the  report  cf  the  medical  officer  made  to  the  investigating 
officer  under  the  provisions  of  paragraph  76a,  supra,  in  case 
such  report,  if  any,  be  offered  in  evidence  by  the  defense ;  but  not 
otherwise. 

(d)  The  convening  authority,  upon  receiving  such  a  request 
from  a  court-martial,  will  convene  a  medical  board  in  accord- 
ance with  the  provisions  of  paragraph  76c,  supra,  which  will 
proceed  and  report  in  the  same  manner  as  though  it  had  been 
convened  under  the  provisions  of  that  paragraph  before  the 
reference  of  the  case  for  trial,  and  its  report  will  be  received, 
referred  to  the  staff  judge  advocate,   and  disposed  of  in  the 
same  manner  as  therein  directed,  and  the  convening  authority 


175 


1)    219  CHAPTER  XI. 

may  thereupon  dispose  of  the  case  in  any  of  the  different  ways 
therein  stated;  except  that,  if  he  determines  that  the  trial 
should  proceed,  he  will  refer  the  report  of  the  medical  board  to 
the  court  with  directions  to  proceed.  If  the  convening  authority 
disposes  of  the  case  in  any  way  without  returning  it  to  the 
court,  such  action  will  be  deemed  a  rescission  of  the  order 
referring  the  case  for  trial  and  a  withdrawal  of  the  charges 
from  the  court-martial. 

If  the  report  is  so  referred  to  the  court-martial  by  the  con- 
vening authority,  the  court  will  thereupon  proceed  in  the  same 
manner  hereinbefore  directed  in  subparagTaph  (b)  of  this  para- 
graph, as  though  the  medical  board  had  been  convened  under 
paragraph  76c,  supra,  in  advance  of  reference  of  the  case  for 
trial. 

(e)  Whenever  any  question  of  mental  defect  or  derangement 
of  the  accused  is  raised  or  suggested  in  any  manner,  as  con- 
templated in  any  of  the  foregoing  subparagraphs  of  this  para- 
graph, a  court-martial  may,  in  its  discretion,  either  while  con- 
sidering the  statutory  question  (A.  W.  31)  whether  the  existence 
of  mental  disease  or  mental  derangement  on  the  part  of  the  ac- 
cused has  become  an  issue  in  the  trial,  or  upon  a  question  of 
continuing  the  case  and  requesting  the  convening  authority  to 
appoint  a  medical  board,  or  after  receiving  in  evidence  the  re- 
port of  a  medical  board  whether  convened  in  advance  of  the 
trial  under  the  provisions  of  paragraph  76c,  supra,  or  after  the 
trial  has  begun  under  the  provisions  of  subparagraphs  (c)  and 
(d)  of  this  paragraph,  call  witnesses  as  to  the  mental  condition 
of  the  accused,  either  for  the  court  or  on  motion  of  either  of  the 
parties  (including  the  medical  officer  who  made  the  report,  if 
any,  on  the  accused  to  the  investigating  officer  under  the  pro- 
visions of  paragraph  76a,  supra). 

(f)  If,  at  any  time  before  a  special  court-martial  or  a  general 
court-martial  is  closed  to  consider  its  findings,  it  appears  to  the 
president  of  a  special  court-martial  or  of  a  general  court-martial 
in  the  absence  of  the  law  member,  or  to  the  law  member  of  a 
general  court-martial,  as  the  case  may  be,  that  the  accused  is 
not  mentally  capable  of  conducting  his  defense  intelligently 
(that  is  to  say,  is  not  mentally  capable  of  communicating  intelli- 
gently with  his  counsel,  of  understanding  the  nature  of  the 


170 


COUKTS-MARTIALr— EVIDENCE.  H  219 

proceedings,  and  of  doing  the  things  necessary  for  an  adequate 
presentation  of  his  defense),  he  will  so  rule,  subject  to  the  right 
of  any  member  to  object  to  such  ruling  under  the  provisions  of 
A.  W.  31  (see  pars.  89  and  89a,  supra) ;  and  if  such  ruling  is  so 
made  and  not  objected  to  (or  is  sustained  by  the  court  upon  a 
vote  in  accordance  with  the  provisions  of  A.  W.  31,  in  case  of 
objection),  the  trial  will  thereupon  be  discontinued  and  a  record 
of  the  proceedings  will  be  prepared  and  forwarded  to  the  con- 
vening authority,  together  with  the  charges  and  all  the  papers 
in  the  case,  with  a  report  by  the  court  at  the  end  of  such  record 
to  the  effect  that  "  the  accused  is  not  in  proper  mental  condition 
at  this  time  to  be  brought  to  trial " ;  whereupon  the  convening 
authority  will  dispose  of  the  case  in  any  of  the  ways  contem- 
plated in  paragraph  76c,  supra,  except  reference  of  the  case  for 
trial ;  provided,  however,  that  if  the  convening  authority  directs 
that  further  action  on  the  charges  be  suspended  for  the  time 
being  pending  such  further  action  as  he  may  afterwards  deter- 
mine, he  may  at  any  time  thereafter,  whenever  he  is  of  opinion 
that  the  accused  has  become  mentally  capable  of  conducting  his 
defense  intelligently,  again  refer  the  case  for  trial,  either,  to  the 
same  or  to  another  court-martial. 

(g)  In  any  case  in  which  it  has  been  determined  as  provided 
in  subparagraph  (a)  that  the  question  of  the  existence  of 
mental  disease  or  mental  derangement  on  the  part  of  the  ac- 
cused has  become  an  issue  in  the  trial,  or  in  which  a  report  of 
a  medical  board  has  been  received  in  evidence,  as  indicated  in 
subparagraphs  (b)  or  (d),  or  a  report  has  been  made  to  the 
appointing  authority,  as  indicated  in  subparagraph  (f),  or  the 
question  of  the  mental  condition  of  the  accused  is  raised  by  any 
member  of  the  court  while  in  closed  session  to  deliberate  on  the 
findings,  the  court  in  balloting  upon  its  findings  in  the  case  will 
separate  such  question  from  all  other  questions  in  the  case,  and 
will  consider  it  by  itself. 

Thereupon  the  court  will  proceed  to  ballot,  in  the  manner  pre- 
scribed in  paragraph  294,  infra,  upon  the  questions: 

(1)  "Is  the  accused  in  proper  mental  condition  at  this 
time  to  undergo  trial  ? "  If  upon  such  ballot  the 
court  determines  such  question  in  the  negative  by 

a  majority  vote   (or  by  a  tie  vote,  since  a  tie 

i 

21358"— 20 12 

177 


^[  219  CHAPTER  XI. 

vote  is  a  decision  in  the  negative),  then  the  court 
will  return  a  finding  in  this  form :  "  The  accused 
is  not  in  proper  mental  condition  at  this  time  to 
undergo  trial,"  and  will  forward  the  record  of 
trial  with  such  finding  to  the  convening  au- 
thority in  the  same  manner  and  with  the  same 
effect  for  all  purposes  as  hereinbefore  prescribed 
in  subparagraph  (f)  of  this  paragraph.  Other- 
wise, the  court  will  then  proceed  to  ballot  in  order 
on  the  following  further  question: 
(2)  "  Was  the  accused  at  the  time  of  the  commission  of 
the  alleged  offense  so  far  free  from  mental  defect, 
mental  disease,  or  mental  derangement  as  to  be 
able,  concerning  the  particular  acts  charged,  both 
(1)  to  distinguish  right  from  wrong  and  (2)  to 
adhere  to  the  right?" 

This  question  will  be  balloted  upon  as  to  each 
specification,  and  if  answered  negatively  or  by  a 
tie  vote  the  court  will  acquit  the  accused  as  to 
such  specification. 

If  upon  such  ballots  both  of  such  questions  are  answered  in  the 
negative,  the  court  will  then  proceed  to  consider  and  ballot  upon 
the  specifications  and  charges  in  the  manner  prescribed  in  para- 
graph 294,  infra,  in  the  same  manner  as  though  no  such  question 
of  mental  defect  or  derangement  had  been  raised  or  suggested. 

In  determining  the  foregoing  questions,  the  court  will  take 
into  consideration  not  only  the  medical  evidence,  but  all  the  evi- 
dence in  the  case. 

(h)  In  any  case  of  conviction  of  an  accused  by  any  court- 
martial,  whether  or  not  any  question  of  mental  defect  or 
mental  disease  or  derangement  became  an  issue  or  was  raised 
or  suggested  at  the  trial  (or  if  the  question  was  raised  or 
suggested  at  the  trial,  but  disregarded  by  the  court),  the 
reviewing  authority,  or  the  confirming  authority  if  there  be 
one,  may  of  his  own  motion  at  any  time  before  taking  final 
action  on  the  record  (and  in  cases  forwarded  for  consideration 
by  the  Board  of  Eeview  and  the  Judge  Advocate  General 
under  A.  W.  50J,  either  before  or  after  such  consideration, 
or  pending  it),  in  his  discretion,  cause  a  medical  board  to  be 


178 


COURTS-MAKTIAL — EVIDENCE.  *J"  220 

convened  to  examine  the  accused  and  report  in  the  same  man- 
ner contemplated  in  paragraph  76c,  supra,  for  the  purpose  of 
advising  and  assisting  him  in  his  decision  as  to  the  proper 
action  to  be  taken  upon  the  record.  If,  in  view  of  such  report 
when  made,  he  shall  disapprove  the,  sentence  in  whole  or  in 
part,  or  any  finding  either  in  whole  or  in  part,  he  will  state 
in  his  action  that  such  disapproval  was  on  that  ground;  and 
in  case  he  disapproves  the  sentence  on  such  ground  he  may  prop- 
erly take  any  such  action  concerning  the  accused  as  is  con- 
templated in  paragraph  76c,  supra. 

NOTE. — TTo  findings  or  sentence  of  a  court-martial  need  ever  "be 
disapproved  solely  because  of  failure  to  comply  with  any  of  the  pro- 
visions of  this  Paragraph,  since  the  reviewing  or  confirming  authority 
may  always  remedy  such  defect  by  availing  himself  of  the  advice  of 
a  medical  board  under  subparagraph  (h),  supra. 

220.  TESTIMONIAL  KNOW:LEDGE. — A  prime  qualification  in 
a  witness  is  that  he  should  speak  only  of  what  he  has  ob- 
served with  his  senses  or  had  an  opportunity  to  observe; 
e.  g.,  a  witness  on  sentry  post  at  night  might  testify  that 
he  heard  three  shots  and  saw  two  persons  running  in  the 
distance,  but  should  stop  with  telling  what  he  heard  and 
saw.  To  proceed  further  and  state  that  the  shots  killed  a 
mule,  and  that  the  accused  was  one  of  the  persons  running 
(unless  he  saw  the  mule  fall  or  recognized  the  accused  at  the 
time)  may  involve  beliefs  of  his  that  are  based  on  rumors 
and  gossip  picked  up  afterwards,  beliefs  for  which  he  has  no 
status  as  a  witness.  An  important  feature  of  correct  trial 
methods  is  to  summon  every  person  who  saw  or  heard  any- 
thing relevant,  but  to  require  every  such  person  to  limit  his 
testimony  to  what  he  himself  saw  or  heard.  In  this  way  the 
court  arrives  (if  the  testimony  be  credited)  at  the  basic 
circumstances  on  which  the  proof  must  be  built  up. 

This  rule  also  has,  of  course,  its  liberal  side,  based  on 
practical  experience.  For  example,  if  the  issue  be  as  to  a 
stolen  case  of  soap,  and  the  quartermaster  has  an  invoice 
showing  400  cases  received,  and  he  is  asked  how  many  are 
remaining  in  stock,  it  is  not  necessary  that  he  should  per- 
sonally count  every  case;  it  might  suffice  if  he  ticked  off 
39  large  bales  of  10  cases,  each  intact,  and  then  found  a  bale 
of  9  with  1  missing. 

179 


H    221  CHAPTER   XI. 

221.  Hearsay  Rule. — This  fundamental  principle  of  requiring 
personal  knowledge  (or  opportunity  to  observe)  leads  up  to  the 
hearsay  rule,  applicable  to  statements  made  by  persons  not  in 
court.  The  hearsay  rule  signifies  that  when  a  witness  testifies 
not  to  what  he  himself  saw  or  heard,  but  to  what  he  heard  some 
one  else  say,  his  testimony  on  that  point  shall  be  rejected,  and 
the  person  who  said  it  shall  be  produced  in  the  court  to  testify, 
the  object  being  to  get  at  the  first-hand  source  of  knowledge. 
Experience  shows  again  and  again  that  when  that  other  person 
is  produced  either  what  he  actually  said  was  something  very  dif- 
ferent, or  else  when  cross-examined  he  turns  out  to  have  only  a 
scanty  trustworthiness.  For  example,  if  the  sentry  in  the  above 
instance  testifies  that  he  did  not  identify  the  person  running,  but 
afterwards  in  barracks  Sergt.  S  said  that  it  was  X,  the  court 
would  exclude  what  Sergt.  S  said,  would  summon  S  to  testify 
in  person,  and  then  it  might  appear  that  all  Sergt.  S  knows 
about  it  is  that  X  came  into  barracks  half  an  hour  later  looking 
as  if  he  were  out  of  breath,  and  this  might  be  connected  up 
with  an  errand  on  which  X  had  been  sent,  by  testimony  of 
his  captain.  The  hearsay  rule,  therefore,  is  a  corollary  of  the 
principle  that  a  witness  must  testify  from  what  he  has  himself 
seen  and  heard,  and  not  from  what  another  person  has  told 
him  or  written  to  him. 

The  following  are  familiar  instances  of  hearsay  in  court- 
martial  cases : 

(1)  A  soldier  is  being  tried  for  desertion.    Pvt.  A  is  able 
to  testify  that  Pvt.  B  told  Pvt.  A  that  the  accused  told  Pvt. 
B  that  he  (the  accused)  intended  to  desert  at  the  first  oppor- 
tunity.   Such  testimony  from  Pvt.  A  would  be  hearsay  and 
would  be  inadmissible.    Pvt.  B  himself  should  be  called. 

(2)  A  soldier  is  being  tried  for  larceny  of  clothes  from  a 
locker.    Pvt.  A  is  able  to  testify  that  Pvt.  B  told  Pvt,  A  that 
he  (Pvt.  B),  about  the  time  the  clothes  were  stolen,  saw  the 
accused  leave  the  quarters  with  a  bundle  resembling  clothes. 
Such  testimony  from  Pvt.  A  would  be  hearsay  and  would  be 
inadmissible.    Pvt.  B  himself  should  be  called. 

(3)  A  soldier  is  being  tried  for  selling  clothing.    Police- 
man A  is  able  to  testify  that,  while  on  duty  as  policeman,  he 
saw  the  accused  with  a  bundle  under  his  arm  go  into  a  shop, 


180 


COURTS-MARTIAL — EVIDENCE.  ^f    2  2  la 

that  Le  (the  policeman)  entered  the  shop  and  the  accused 
ran  away  and  the  policeman  was  unable  to  catch  him.  The 
policeman  the  next  day  asked  the  proprietor  of  the  shop  what 
the  accused  was  doing  there,  and  the  proprietor  replied  that 
the  accused  sold  him  some  clothes  issued  by  the  Government 
and  that  he  paid  the  accused  $2.50  for  them.  The  testimony 
of  the  policeman  as  to  the  reply  of  the  proprietor  would  be 
hearsay  and  would  be  inadmissible.  The  fact  that  the  police- 
man was  acting  in  the  line  of  his  duty  at  the  time  the  pro- 
prietor made  the  statement  would  not  render  the  evidence 
admissible. 

In  the  foregoing  instances  the  fact  that  the  accused  said  he 
intended  to  desert,  that  the  accused  left  the  quarters  with  a 
bundle,  and  that  the  accused  sold  the  proprietor  the  clothes, 
constitute  most  important  evidence  and  can  be  proved  in  the 
first  two  instances  by  Pvt.  B  and  in  the  third  instance  by  the 
proprietor,  but  they  can  not  be  proved  by  hearsay  evidence. 

If  evidence  is  hearsay  it  does  not  become  admissible  be- 
cause it  was  made  to  an  officer  in  the  course  of  an  official  in- 
vestigation. For  instance,  in  illustration  (1),  if  Pvt.  B  had 
made  his  statement  to  Capt.  C  in  the  course  of  an  official  in- 
vestigation by  Capt.  C,  the  statement  would  still  be  hearsay 
and  inadmissible. 

Official  statements  and  opinions  as  to  either  guilt  or  inno- 
cence expressed  by  an  officer,  as,  for  instance,  a  company, 
regimental,  or  department  commander,  or  by  a  staff  officer,  in 
an  indorsement,  are  not  admissible  in  evidence  by  reason  of 
the  official  character  of  the  indorsement  or  the  rank  or  posi- 
tion of  the  officer  making  it,  as  it  would  be  hearsay.  Nor 
is  such  a  statement- or  opinion  evidence  because  it  is  among 
papers  referred  to  the  trial  judge  advocate  with  the  charges. 
It  would  be  irregular  to  permit  such  statements  or  opinions 
to  come  to  the  attention  of  the  court.  If  they  do  become 
known  to  the  court  they  should,  of  course,  not  be  considered 
in  arriving  at  a  finding  or  sentence. 

221a.  Exceptions  to  the  Hearsay  Rule. — The  hearsay  rule  is 
subject  to  some  well-established  exceptions;  most  of  them  are 
based  on  the  general  principle  that  there  is  an  unavoidable 
necessity  for  using  the  hearsay,  because  the  person  is  deceased 


181 


If  2  2  la  CHAPTER  xi. 

or  for  some  other  reason  can  not  be  secured  as  a  witness.  These 
exceptions  are  now  settled,  however,  into  fixed  rules,  irrespec- 
tive of  the  above  principle. 

The  principal  exceptions  likely  to  be  presented  for  applica- 
tion in  court-martial  trials  are  the  following  (cross  references 
are  given  to  those  which  are  later  more  fully  stated  in  this 
Manual). 

(1)  Dying  Declarations   (par.  222). 

(2)  Statements  of  Facts  Against  Interest. — A  statement  of  a 
fact  against  the  pecuniary  or  proprietary  interest  of  the  declar- 
ant is  admissible;  e.  g.,  where  he  states  he  has  received  pay- 
ment for  a  debt,  or  that  he  is  not  the  owner  but  only  bailee  of 
a  chattel.    But  this  exception  applies  only  where  the  declarant 
is  deceased,  or  out  of  the  jurisdiction,  or  otherwise  unavailable 
as  a  witness  on  the  stand. 

(3)  Statements  about  Family  History. — A  statement  by  a 
family  member,  or  the  general  family  repute,  about  a  fact  of 
family  history,  such  as  birth,  parentage,  relationship,  marriage, 
age,  etc.,  or  the  date  or  place  thereof,  is  admissible.    But  if  the 
statement  is  by  an  individual  family  member  (and  not  general 
family  repute),  the  declarant  must  be  shown  to  be  deceased,  out 
of  the  jurisdiction,  or  otherwise  unavailable  as  a  witness  on  the 
stand. 

(4)  Regular  entries  in  a  book  of  business  transactions  (par. 
244). 

(5)  Official  Statements  in  Writing. — An  official  statement  in 
writing  (whether  in  a  regular  series  of  records,  or  a  report,  or  a 
certificate)  is  admissible  when  the  officer  had  the  duty  or  au- 
thority to  do  or  to  know  the  matter  so  stated  (par.  238a) . 

(6)  Scientific  Treatises. — A  treatise  or  essay  on  a  subject  of 
science  or  art,  composed  by  a  person  expert  therein,  is  admissible. 
But  there  should  be  usually  preliminary  testimony  by  a  qualified 
witness  that  the  author  is  approved  in  his  profession  as  an  ex- 
pert or  that  the  treatise  is  a  standard  one. 

(7)  Commercial  Lists,  Registers,  etc. — A  list  or  register  or 
report  containing  data  of  general  interest  to  some  commercial, 
industrial,   or  professional  occupation,   and  published  for  use 
therein,  is  admissible. 


182 


COURTS-MARTIAL — EVIDENCE.  222    ^ 

(8)  Statements  of  Mental  or  Physical  Condition. — A  person's 
statements  of  his  present  mental  condition  or  physical  sensation 
are  admissible,  without  calling  him  to  the  stand  or  accounting 
for  his  absence;  but  the  statement  must  relate  to  his  present 
condition,  and  not  to  past  external  events ;  e.  g.,  a  person's  state- 
ment that  he  has  pains  in  his  back,  or  that  he  intends  to  take 
a  certain  train  next  day,  or  that  he  is  angry  with  a  certain 
person,  or  that  he  refuses  to  go  because  he  is  afraid  of  some- 
thing, is  admissible.     When  interviewed  by  a  physician,  his 
statement  as  to  the  cause  of  his  suffering  is  admissible.    State- 
ments of  an  accused,  when  doing  an  act,  as  to  his  intent  or 
motive  are  admissible  under  this  rule,  even  when  they  are 
oifered  in  his  own  favor ;  when  offered  against  him,  they  are  also 
receivable  as  a  party's  admissions  under  par.  226. 

(9)  Statements,  Exclamations,  or  Ees  Gestae  (par.  223). 

(10)  Statements  of  Deceased  Persons  in  General. — In  courts- 
martial  the  liberal  principle,  now  adopted  in  one  or  two  States, 
may  well  be  followed  in  extreme  cases,  viz,  wherever  the  person, 
whose  statement  is  desired  to  be  offered  (whether  written  or 
oral),  is  deceased  at  the  time  of  the  trial,  and  was  a  person  having 
personal  knowledge  of  the  facts,  his  statement  may  be  admitted, 
in  the  discretion  of  the  court. 

222.  DYING  DECLARATIONS. — On  trials  for  murder  and 
manslaughter,  the  law  recognizes  an  exception  to  the  rule 
rejecting  hearsay  by  allowing  the  dying  declarations  of  the 
victim  of  the  crime,  in  regard  to  the  circumstances  which 
produced  his  condition,  and  especially  as  to  the  person  by 
whom  the  violence  was  committed,  to  be  detailed  in  evidence 
by  one  who  heard  them.  The  reason  for  admitting  such 
declarations  where  the  victim  believes  death  is  impending  is 
that  his  belief  is  equal  to  the  sanctity  of  an  oath  in  causing 
him  to  tell  the  truth.  It  is  no  objection  to  their  admissi- 
bility  that  they  were  brought  out  in  answer  to  leading  ques- 
tions or  upon  urgent  solicitations  addressed  to  him  by  any 
person  or  persons ;  and  if,  instead  of  speaking,  he  answered 
the  questions  by  intelligible  signs  these  signs  may  equally  be 
testified  to.  Dying  declarations  are  admissible  as  well  in 
favor  of  the  accused  as  against  him.  It  is  to  be  remarked 


183 


H"    223  CHAPTER  XI. 

that  evidence  of  dying  declarations  made  as  such  usually  are 
under  circumstances  of  mental  and  physical  collapse  or  ex- 
treme weakness  and  without  being  subjected  to  the  ordinary 
legal  tests  are  generally  to  be  received  with  great  caution. 
(Winthrop,  p.  493.) 

223.  RES  GEST^:. — Another  exception  to  the  hearsay  rule 
consists  of  the  inculpatory  or  exculpatory  declarations  or 
statements  that  constitute  part  of  the  res  gestse.  By  the  res 
gestae  is  meant  the  circumstances  and  occurrences  substan- 
tially contemporaneous  with  the  facts  at  issue  that  explain 
and  elucidate  the  character  and  quality  of  such  facts.  Such 
are  threats  or  declarations  of  the  accused  in  connection  with 
his  commission  of  the  crime  that  indicate  his  intent  or 
knowledge;  declarations  or  exclamations  of  a  party  injured 
that  go  to  indicate  the  nature  of  the  violence  and  the  parties 
responsible;  language  of  accomplices;  cries  of  bystanders; 
facts,  circumstances,  and  declarations  showing  premedita- 
tion and  preparation  for  the  crime.  All  such  may  be  estab- 
lished by  the  testimony  of  persons  who  heard  the  utterances, 
etc.  All  such  declarations  and  statements  must  be  made  so 
near  in  time  to  the  principal  transaction  as  to  preclude  the 
idea  of  deliberate  design  or  afterthought  in  making  them, 
but  it  is  not  essential  that  they  should  have  been  made  in  the 
presence  or  hearing  of  the  accused.  Where  the  crime  com- 
mitted is  the  culmination  of  a  series  of  acts,  such  as  in  riots, 
etc.,  the  res  gestae  rule  applies  to  all  acts  and  declarations  of 
the  rioters  and  of  bystanders  that  would  tend  to  indicate 
purpose,  motive,  etc. 

The  res  gestse  is  considered  as  an  act  connected  with  or 
an  incident  of  a  main  transaction,  and  not  as  testimony ;  and 
as  soon  as  it  assumes  the  character  of  a  narration  rather  than 
a  spontaneous  exclamation,  there  is  probable  ground  for  be- 
lief that  it  was  inspired  by  a  desire  to  influence  the  case,  and 
it  is  then  inadmissible,  as  falling  under  the  hearsay  rule. 
The  application  of  the  rule  of  res  gestae  is  not  limited 
strictly  to  circumstances  and  occurrences  contemporaneous 
with  the  principal  facts  at  issue  nor  with  the  transactions 
leading  up  to  the  principal  facts.  The  following  examples 
illustrate  what  constitute  the  res  gestse : 


184 


COURTS-MARTIAL EVIDENCE.  ^f    223a 

Where  a  soldier  is  charged  with  murder,  manslaughter, 
or  assault,  and  the  party  against  whom  the  violence  is  offered 
is  another  soldier,  and  the  wife  of  the  former,  while  walking 
with  the  latter,  exclaims,  "Run!  here  comes  my  jealous 
husband,  and  he  will  kill  you!",  her  exclamations  would 
be  admitted  as  part  of  the  res  gestae.  If  the  soldier  had  then 
fled  to  his  house  pursued  by  her  husband  and  she  had  fol- 
lowed to  deter  him  from  injuring  the  other  party  and  later 
had  run  from  the  house  shouting,  "  My  husband  is  killing 
Jones !",  or  "  has  just  killed  Jones!",  her  exclamations  would 
be  admissible  as  constituting  part  of  the  res  gestse.  If  a 
party  in  the  next  room  had  heard  a  shot  and  then  a  voice 
that  he  recognized  as  Pvt.  Jones's  say,  "  You  shot  me  for 
revenge  and  nothing  else,"^  the  declaration  would  be  con- 
sidered as  a  part  of  the  res  gestse. 

223a.  Identification  of  the  Accused. — This  identification  of 
the  accused  involves  two  distinct  elements,  viz:  First,  that  the 
person  now  in  court  as  accused  is  the  same  person  described  in 
the  charges  by  name,  rank,  title,  and  organization;  secondly, 
that  the  person  now  in  court  as  accused  (irrespective  of  his  name, 
rank,  etc,)  is  the  very  person  who  did  the  act  charged  and  to 
which  act  the  witness's  testimony  will  refer.  The  first  of  these 
elements  is  usually  proved  by  witnesses  who  know  the  accused  and 
the  facts  as  to  his  rank  and  organization,  and  when  necessary,  by 
official  records  or  duly  authenticated  copies.  The  second  element 
involves  the  question  whether  the  person  now  in  court  (his  name, 
rank,  and  organization  being  assumed  to  be  otherwise  duly  evi- 
denced) was  the  actual  person  who,  e.  g.,  took  part  in  the  affray 
or  the  rape,  or  made  the  false  pretenses,  or  did  whatever  is  the 
offense  charged.  Whenever  this  fact  is  disputed,  care  must  be 
taken  to  offer  all  available  evidence  that  may  serve  to  remove 
doubt  as  to  identity;  for  no  injustice  is  more  pronounced  than 
that  of  convicting  an  innocent  person  by  reason  of  mistaken 
identity. 

224.  EVIDENCE  OF  CONSPIRATORS  AND  ACCOMPLICES. — In 
cases  where  several  persons  join  with  a  common  design  in 
committing  an  offense  all  acts  and  statements  of  each  of  them 
made  in  furtherance  of  the  offense  are  admissible  against 
each  of  the  others.  Only  where  the  statements  of  such  con- 


185 


^   225  CHAPTER  XT. 

spirator  fall  within  the  rule  laid  down  for  admission  of 
evidence  as  a  part  of  the  res  gestsG  could  such  statements 
be  admissible  for  the  defense.  The  acts  and  statements  of  a 
conspirator,  however,  made  after  the  common  design  is  ac- 
complished or  abandoned,  are  not  admissible  against  the  others, 
except  acts  and  statements  in  furtherance  of  an  escape.  It 
is  immaterial  whether  such  acts  or  statements  were  made  in 
the  presence  or  hearing  of  the  other  parties.  They  are  bind- 
ing upon  all  parties  if  they  are  in  furtherance  of  the  common 
design.  Foundation  must  first  be  laid  by  either  direct  or 
circumstantial  evidence  sufficient  to  establish  prima  facie  the 
fact  of  conspiracy  between  the  parties.  But  as  it  sometimes 
may  interfere  with  the  proper  development  of  the  case  to  re- 
quire the  trial  to  begin  with  proof  of  the  conspiracy,  in  such 
case  the  prosecution  may,  at  the  trial,  prove  the  declarations  and 
acts  of  one  made  and  done  in  the  absence  of  the  others,  before 
proving  the  conspiracy  between  the  defendants,  though  such 
proof  will  be  treated  as  nugatory  unless  the  conspiracy  be  after- 
wards independently  established.  (See,  however,  note  to  sub- 
paragraph  (2)  of  paragraph  202,  supra.)  While  in  Federal 
courts  and  courts-martial  corroboration  of  the  testimony  of 
a  coconspirator,  or  accomplice,  need  not  be  required,  yet  from 
the  character  of  the  associations  formed  the  uncorroborated 
testimony  of  a  coconspirator,  or  accomplice,  should  be  re- 
ceived with  great  caution. 

225.  CONFESSIONS. — Another  exception  to  the  rule  exclud- 
ing hearsay  evidence  is  the  rule  that  admits  testimony  as  to 
confessions  of  guilt  made  by  the  accused.  The  most  common 
form  of  confession  is  that  contained  in  the  plea  of  guilty 
made  by  the  accused  in  open  court  in  answer  to  a  charge. 
This  is  not  the  kind  of  confession  referred  to  as  constituting 
an  exception  to  the  hearsay  rule.  The  confessions  referred  to 
are  those  made  out  of  court.  The  following  rules  limit  the  use 
of  such  confessions: 

(a)  A  confession  must  be  offered  in  its  entirety,  so  that  the 
accused  receives  the  benefit  of  having  all  of  his  statements  con- 
strued together  to  reach  their  full  and  actual  meaning.  A  con- 
fession can  not  be  used  as  evidence  by  taking  only  one  or  more 
parts  specially  unfavorable  to  the  accused.  But  this  rule  only 


186 


COURTS-MARTIAL — EVIDENCE.  ^f   225 

applies  to  all  the  statements  made  at  a  single  interview  or  in  a 
single  document;  statements  made  by  the  accused  at  a  separate 
time  or  in  another  document  need  not  be  used. 

(b)  It  must  be  shown,  before  admitting  it,  that  the  con- 
fession was  entirely  voluntary  on  the  part  of  the  accused. 
If  the  confession  is  voluntary  on  its  face,  the  burden  is  on  the 
defendant  to  show  that  it  was  incompetent  (Wharton  Crim. 
Ev.,  1419;  Underbill  Crim.  Ev.  127.) 

A  confession  is,  in  a  legal  sense,  "  voluntary  "  when  it  is  not 
induced  or  materially  influenced  by  hope  of  release  or  other 
benefit  or  fear  of  punishment  or  in j  ury  induced  or  influenced 
by  words  or  acts,  such  as  promises,  assurances,  threats,  harsh 
treatment,  or  the  like,  on  the  part  of  an  official  or  other  person 
competent  to  effectuate  what  is  promised,  threatened,  etc.,  or 
at  least  believed  to  be  thus  competent  by  the  party  confessing. 
And  the  reason  of  the  rule  is  that  where  the  confession  is  not 
thus  voluntary  there  is  always  ground  to  doubt  whether  it 
be  true.  (Winthrop,  p.  496.)  In  military  cases,  in  view  of 
the  authority  and  influence  of  superior  rank,  confessions 
made  by  inferiors,  especially  when  ignorant  or  inexperienced 
and  held  in  confinement  or  close  arrest,  should  be  regarded 
as  incompetent  unless  very  clearly  shown  not  to  have  been 
unduly  influenced.  Statements,  by  way  of  confession,  made 
by  an  inferior  under  charges  to  a  commanding  officer,  judge 
advocate,  trial  judge  advocate,  or  other  superior  whom  the 
accused  could  reasonably  believe  capable  of  making  good  his 
words,  upon  even  a  slight  assurance  of  relief  or  benefit  by 
such  superior  should  not  in  general  be  admitted.  Thus  in  a 
case  where  a  confession  was  made  to  his  captain  by  a  soldier 
upon  being  told  by  the  former  that  "  matters  would  be  easier 
for  him,"  or  "  as  easy  as  possible,"  if  he  confessed,  such  con- 
fession was  held  not  to  have  been  voluntary  and  therefore  im- 
properly admitted.  And  it  has  been  similarly  ruled  in  cases 
of  confessions  made  by  soldiers  upon  assurances  being  held 
out  or  intimidation  resorted  to  by  noncommissioned  officers. 
(Winthrop,  p.  498.)  Confessions  made  by  private  soldiers 
to  officers  or  noncommissioned  officers,  though  not  shown 
to  have  been  made  under  the  influence  of  promises  or  threats, 
etc.,  should,  in  view  of  the  military  relations  of  the  parties, 


187 


If   225  CHAPTER  XI. 

be  received  with  caution.  Of  course,  the  above  principles 
apply  to  a  written  confession  as  well  as  to  a  verbal  one. 
In  some  cases  before  courts-martial  it  appears  that  the  ac- 
cused has  signed  a  paper  confessing  his  guilt,  stating  in  the 
paper  that  he  confesses  freely  without  hope  of  reward  or  fear 
of  punishment,  etc.  Such  statements  are  not  conclusive  that 
the  confession  was  voluntary.  Evidence  may  be  introduced. 
If  the  evidence  shows  the  statement  was  not  in  fact  voluntary, 
it  should  not  be  considered  by  the  court. 

Where  the  confession  was  made  to  a  civilian  in  authority, 
such  as  a  police  officer  making  an  arrest,  the  fact  that  the  official 
did  not  warn  the  person  that  he  need  not  say  anything  to  in- 
criminate himself  does  not  necessarily  in  itself  prevent  the  con- 
fession from  being  voluntary.  But  where  the  confession  is  made 
to  a  military  superior  the  case  is  different.  Considering  the 
relation  that  exists  between  officers  and  enlisted  men  and 
between  an  investigating  officer  and  a  person  whose  conduct 
is  being  investigated,  it  devolves  upon  an  investigating  officer, 
or  other  military  superior,  to  warn  the  person  investigated 
that  he  need  not  answer  any  question  that  might  tend  to  in- 
criminate him.  Hence,  confessions  made  by  soldiers  to 
officers  or  by  persons  under  investigation  to  investigating 
officers  should  not  be  received  unless  it  is  shown  that  the 
accused  was  warned  that  his  confession  might  be  used  against 
him,  or  unless  it  is  shown  clearly  in  some  other  manner  that 
the  confession  was  entirely  voluntary. 

(c)  At  some  time  during  the  trial,  corroborating  evidence 
must  be  introduced  either  direct  or  circumstantial,  outside  of 
the  confession  itself,  that  the  crime  charged  has  been  com- 
mitted. This  is  what  is  technically  known  as  the  rule  re- 
quiring proof  of  the  corpus  delicti;  that  is,  some  proof  of 
the  fact  that  the  crime  charged  has  probably  been  committed 
by  some  one,  so  that  there  will  be  some  corroboration  of  the 
confession.  Usually  the  corpus  delicti  is  evidenced  before  any 
other  main  fact.  But  for  the  convenience  of  the  court  or  wit- 
nesses a  confession  may  be  received,  subject  to  being  stricken 
out  upon  failure  to  prove  the  corpus  delicti,  and  if  the  corpus 
delicti  is  afterwards  proven,  the  rights  of  the  accused  will  not  be 
prejudiced.  (But  see  note  to  subparagraph  (2)  of  par.  202.)  It 


188 


COURTS-MARTIAL — EVIDENCE.  ^  225 

is  not  requisite  that  this  outside  evidence  constituting  proof 
of  the  corpus  delicti  shall  be  sufficient  to  convince  the  court 
beyond  a  reasonable  doubt  of  the  guilt  of  the  accused,  nor 
need  it  cover  every  element  contained  in  the  charge.  For 
instance,  where  desertion  is  charged  proof  of  absence  with- 
out leave  would  be  considered  as  proving  the  corpus  delicti ; 
where  the  charge  is  that  a  sentinel  had  left  his  post  before 
being  regularly  relieved  it  would  be  sufficient  to  prove  that 
he  was  not  on  his  post  during  his  period  of  duty;  where  a 
homicide  is  charged  the  proof  of  the  death  of  the  person 
charged  to  have  been  killed  amounts  to  proof  of  the  corpus 
delicti ;  and  in  cases  of  larceny  and  selling  clothing  the  fact 
that  the  property  alleged  to  have  been  stolen  or  sold  was 
missing  is  sufficient  proof. 

(d)  In  view  of  the  peculiar  conditions  of  mind  and  body 
under  which,  accused  persons  are  often  placed  when  making 
confessions,  of  the  liability  to  mistake  on  the  part  of  the  wit- 
nesses who  repeat  them  when  oral,  and  of  the  tendency  of 
these  latter  to  exaggerate  through  a  zeal  for  conviction,  evi- 
dence of  confessions,  unless  corroborated  by  other  reliable 
evidence,  is  in  general  to  be  received  with  caution.    Where, 
however,  a  confession  is  explicit  and  deliberate  as  well  as 
voluntary,  and,  if  oral,  is  proved  by  a  witness  or  witnesses 
by  whom  it  has  not  been  misunderstood  and  is  not  misrepre- 
sented, it  is  indeed  one  of  the  strongest  forms  of  proof  known 
to  the  law  (Winthrop,  p.  499). 

Courts  should  bear  in  mind  that  mere  silence  on  the  part 
of  an  accused  when  questioned  as  to  his  supposed  offense  is 
not  to  be  treated  as  a  confession. 

(e)  Although  the  confession,  because  not  voluntary,  is 
inadmissible,  yet  any  information  given  in  the  confession 
that  leads  to  the  discovery  of  relevant  facts  will  not  render 
testimony  of  such  facts  inadmissible,  and  it  may  be  further 
shown,  by  way  of  corroboration  of  such  facts,  that  the  dis- 
covery was  either  wholly  or  partially  due  to  the  information 
thus  obtained. 

NOTE  1. — It  has  been  held  that  where  alleged  confessions  were 
offered  in  evidence  and  the  court  directed  the  trial  judge  advocate  to 
hand  the  statements  to  the  accused  and  the  accused  was  asked  "if 
that  was  his  statement,"  this  was  an  invasion  of  the  substantial  rights 


189 


^[226  CHAPTER  XI. 

of  the  accused,  in  that  it  compelled  him  to  give  evidence  against  him- 
self (even  though  not  objected  to  by  the  defense),  C.  M.  No.  135096, 
Anderson,  August  2,  1919. 

226.  ADMISSIONS  AGAINST  INTEREST. — Somewhat  connected 
with  the  subject  of  confessions  is  that  of  declarations  or  ad- 
missions against  one's  own  interest.     This  constitutes  an- 
other exception  to  the  rule  excluding  hearsay.    The  law  makes 
a  distinction  between  mere  admissions  and  complete  confessions 
of  guilt,  and  there  is  no  requirement  that  before  an  admission 
can  be  received  in  evidence  there  must  be  an  affirmative  show- 
ing that  it  was  voluntary.     In  many  instances  the  accused, 
after  the  commission  of  an  offense,  makes  statements  which 
fall  short  of  a  full  confession  of  guilt  but  do  constitute  im- 
portant admissions  as  to  his  connection  with  the  offense. 
The  rule  is  that  such  admissions  if  against  his  own  interest 
may  be  admitted  in  evidence.     For  instance,  in  a  case  of 
homicide  in  a  dance  hall,  if  the  accused  when  arrested  made 
the  statement  that  he  was  in  the  hall  when  the  homicide  took 
place,  such  a  statement  is  admissible  as  against  his  interest. 
On  a  trial  for  desertion,  a  statement  of  the  accused  to  the  sheriff 
that  he  was  "  tired  of  working  for  the  Government,"  and  that 
he  did  not  want  to  work  for  them  any  longer,  was  an  admission 
and  not  a  confession.    An  admission  does  not  necessarily  involve 
a  criminal  intent,  while  a  confession  is  an  acknowledment  of 
guilt.    Instances  of  such  admissions  would  be  (a)  concealment 
by  an  alleged  deserter  when  he  knew  he  was  being  searched  for ; 
(b)  destruction  of,  or  an  effort  to  destroy,  documentary  evidence 
which  an  accused  knew  was  to  be  used  against  him;  (c)  bribery 
or  attempted  bribery  of  a  prospective  witness  by  the  accused  to 
testify  that  the  accused  was  at  a  certain  place  at  a  certain  time 
(when  he  was  not).     (See  also  Wigmore,  Pocket  Code,  Ev., 
641-665.) 

227.  PRIVILEGED    COMMUNICATIONS. — A    privileged    com- 
munication is  one  that  relates  to  matters  occurring  during  a 
confidential  relation,  which  it  is  the  public  policy  to  protect. 
A  witness  can,  and  usually  should,  decline  to  answer  a  ques- 
tion touching  such  a  communication,  and  where  the  privilege 
is  that  of  the  accused,  or  of  the  Government,  or  of  any  person 
other  than  the  witness,  the  court  will  not  permit  the  witness  to 


190 


COURTS-MARTIAL — EVIDENCE.  ^f  227 

answer  such  question,  except  with  the  consent  of  the  person 
entitled  to  the  benefit  of  the  privilege  or  of  the  proper  govern- 
mental authorities,  as  the  ease  may  be.  The  confidential  rela- 
tions that  were  protected  at  common  law  and  which  are  met 
with  in  court-martial  practice  are  the  following : 

State  Secrets. — Communications  made  by  informants  to 
public  officers  engaged  in  the  discovery  of  crime  are  privi- 
leged. The  deliberations  of  courts  and  of  grand  and  petit 
juries  are  privileged,  but  the  results  of  their  deliberations 
are  not  privileged.  Diplomatic  correspondence,  and,  in  gen- 
eral, all  oral  or  written  official  communications  which,  in  the 
opinion  of  the  President,  would  be  detrimental  to  the  public 
interests,  and  official  communications  between  the  heads  of 
the  departments  of  the  Government  and  their  subordinate 
officers  are  privileged.  Were  it  otherwise  it  would  be  im- 
possible for  such  superiors  to  administer  effectually  the  pub- 
lic affairs  with  which  they  are  intrusted. 

Husband  and  Wife. — Communications  between  husband 
and  wife  are  privileged.  (But  see  par.  228,  infra.) 

Attorney  and  Client. — The  testimony  of  the  attorney  or 
his  interpreter  or  stenographer,  as  to  communications  be- 
tween the  client  and  the  attorney,  made  while  the  relation  of 
attorney  and  client  existed  and  in  connection  with  the  matter 
for  which  the  attorney  was  engaged,  will  not  be  received  by 
a  court,  unless  such  communications  clearly  contemplate  the 
commission  of  a  crime;  i.  e.,  perjury,  subornation  of  perjury, 
etc.  Of  course,  communications  prior  to  or  subsequent  to  the 
relation  are  not  privileged.  The  client,  but  not  the  attorney, 
may  waive  this  privilege. 

Police  secrets. — The  privilege  that  extends  to  communica- 
tions made  by  informants  to  public  officers  engaged  in  the 
discovery  of  crime  should  be  given  a  common-sense  interpre- 
tation. The  public  interests  would  ordinarily  be  prejudiced 
by  reason  of  the  disclosure  of  such  communications  in  a  case 
as  involved  the  identity  of  parties  employed  for  the  detection 
of  criminals  or  would  endanger  the  party  who  made  such 
communication,  or  would  injuriously  affect  the  chances  of 
securing  such  agents  for  the  detection  of  crime  in  the  future. 
But  the  material  interests  of  the  accused  to  vindicate  his  in- 


191 


^|   228  CHAPTER  XI. 

nocence  should  not  be  allowed  to  suffer  by  reason  of  the 
exclusion  of  such  evidence. 

The  purpose  of  the  privilege,  extended  to  communications 
between  husband  and  wife  and  attorney  and  client,  which 
grows  out  of  a  recognition  of  the  public  advantage  that  ac- 
crues from  encouraging  free  communication  in  such  circum- 
stances, is  not  disregarded  by  allowing  outside  parties  who 
overhear  such  privileged  communications  to  testify  to  what 
they  have  overheard.  It  would  not  be  permitted,  however, 
for  one  of  the  minor  children  of  the  parents,  who  might 
reasonably  be  presumed  by  the  parents  not  to  understand 
what  they  were  talking  about,  to  testify  to  communications 
overheard  by  such  child. 

228.  PRIVILEGE  OF  WIFE  AND  HUSBAND  TO  TESTIFT. — At 
common  law  the  rule  was  that  neither  husband  nor  wife  is 
competent  as  a  witness  against  the  other,  except  in  a  case  of 
bodily  injury  inflicted  by  one  of  them  upon  the  other. 

A  married  woman  is  excluded  as  a  witness  from  motives  of 
public  policy.  (Lucas  v.  Brooks,  18  Wall.,  436,  453.) 

Certain  departures  have  been  made  from  the  common-law 
rule  by  Federal  statutes  and  decisions. 

In  any  prosecution  for  bigamy,  polygamy,  or  unlawful 
cohabitation  under  any  statute  of  the  United  States,  the 
lawful  husband  or  wife  of  the  accused  shall  be  a  competent 
witness,  and  may  be  called,  but  shall  not  be  compelled  to 
testify  in  such  proceedings,  and  shall  not  be  compelled  to 
testify  *  *  *  without  the  consent  of  the  husband  or  wife, 
as  the  case  may  be.  (Act  of  Mar.  3,  1887,  24  Stat.,  635.) 

The  wife  should  be  permitted  to  testify  against  her  hus- 
band, even  without  his  consent,  whenever  she  is  the  par- 
ticular individual  directly  injured  by  the  crime  committed 
by  her  husband.  It  would,  therefore,  be  appropriate  in  such 
cases  against  a  husband  as  bodily  injury  of  any  character 
inflicted  by  him  upon  her,  bigamy,  polygamy,  or  unlawful 
cohabitation,  abandonment  of  wife  and  children,  or  failure  to 
support  them,  or  designating  another  woman  beneficiary  under 
the  War  Risk  Insurance  Act  (C.  M.  112488,  McCollister,  May  22, 
1918),  or  using  or  transporting  her  for  "white-slave"  pur- 


192 


COURTS-MARTIAL EVIDENCE.  ^f    229 

poses  (C.  M.  114676,  Wilson,  May  22,  1918),  or  immoral  pur- 
poses, for  the  wife  to  be  permitted  to  testify  against  her 
husband;  but  she  can  not  be  compelled  to  do  so,  and  her  state- 
ment of  her  reason  for  declining  to  testify  can  not  be  treated  as 
proof  of  the  marriage.  (C.  M.  121028,  Dorton,  Nov.  14,  1919.) 

229.  TELEGRAMS   Nor   PRIVILEGED. — Neither   private  tele- 
grams nor  the  information  regarding  them  that  comes  to  the 
knowledge  of  telegraph  operators,  either  military  or  civil, 
are  privileged.    Telegraph  operators,  both  military  and  civil, 
may  be  subpoenaed  to  testify  before  a  court-martial  as  to  pri- 
vate telegrams,  and  private  telegrams  may  be  brought  before 
a  court-martial  by  the  usual  process. 

230.  CONFIDENTIAL  PAPERS. — The  reports  of  special  inspec- 
tions by  the  Inspector  General's  Department  are  confidential 
documents  and  the  testimony  taken  is  considered  a  part  and 
parcel  of  such  reports.    There  is  no  law  or  regulation  which 
requires  copies  of  the  evidence  contained  in  these  confidential 
reports  to  be  furnished  to  officers  whose  conduct  has  been  un- 
der investigation.    So  also  the  reports  of  the  Judge  Advocate 
General  to  the  Secretary  of  War  have  always  been  regarded 
as  confidential  communications  and  it  has  not  been  the  prac- 
tice to  furnish  copies  of  them  to  parties  outside  the  depart- 
ment in  the  absence  of  special  authority  from  the  Secretary 
of  War.    If  the  prosecution  has  had  access  to  any  such  docu- 
ment, fairness  requires  that  the  accused  should  have  eqnal 
access  to  it. 

231.  COMMUNICATIONS  FROM  OFFICERS  OR  SOLDIERS  TO  MED- 
ICAL OFFICERS  NOT  PRIVILEGED. — It  is  the  duty  of  medical 
officers  of  the  Army  to  attend  officers  and  soldiers  when  sick, 
to  make  the  annual  physical  examination  of  officers,  and  ex- 
amine recruits  for  enlistment,  and  they  may  be  specially 
directed  to  observe  an  officer  or  soldier  or  specially  to  examine 
or  attend  them;  such  observations,  examination,  or  attend- 
ance would  "be  official  and  the  information  acquired  would  be 
official.     While  the  ethics  of  the  medical  profession  forbid 
them  to  divulge  to  unauthorized  persons  the  information  thus 
obtained  and  the  statements  thus  made  to  them,  such  in- 
formation and  statements  do  not  possess  the  character  of 
privileged  communications.     If  the  medical  officer,  when 

21358°— 20 13 


193 


Tf    232  CHAPTER  XI. 

called  as  a  witness  before  a  court-martial,  refuses  to  testify 
to  such  matters,  he  is  subject  to  charges  under  A.  W.  96. 

232.  COMMUNICATIONS  BETWEEN  CIVILIAN  PHYSICIANS  AND 
PATIENTS  NOT  PRIVILEGED. — Neither  are  the  communications 
between  civilian  physician  and  patient  privileged,  and  the 
refusal  of  a  physician  to  testify  to  such  communications 
would  subject  him  to  the  prosecution  provided  by  A.  W.  23. 

233.  COMPULSORY  SELF  -  CRIMINATION  PROHIBITED.  —  The 
fifth  amendment  to  the  Constitution  of  the  United  States 
provides  that  in  a  criminal  case  the  person  shall  not  be  com- 
pelled "  to  be  a  witness  against  himself."    The  principle  em- 
bodied in  this  provision  applies  to  trials  by  courts-martial 
and  is  not  limited  to  the  person  on  trial,  but  extends  to  any 
person  who  may  be  called  as  a  witness.    A.  W.  24  provides 
that  no  witness  before  a  military  court,  commission,  court 
of  inquiry,  or  board,  or  before  any  officer,  military  or  civil, 
designated  to  take  a  deposition  to  be  read  in  evidence  be- 
fore a  military  court,  commission,  court  of  inquiry,  or  board, 
shall  be  compelled  to  incriminate  himself  or  to  answer  any 
question  the  answer  to  which  may  tend  to  incriminate  him, 
or  to  answer  any  question  not  material  to  the  issue  when  such 
answer  might  tend  to  degrade  him. 

Thus,  it  is  error  requiring  a  disapproval  of  the  findings  and 
sentence  of  the  court  for  the  trial  judge  advocate  to  call  the 
accused  as  a  witness  against  himself  and  thus  elicit  important 
admissions  from  him  (C.  M.  108428,  Hamilton,  Jan.  5,  1918;  C.  M. 
129804,  Jones,  May  20,  1919;  C.  M.  128735,  Soldier,  Apr.  23, 
1919). 

It  must  be  noted  that  this  rule  draws  a  distinction  between 
questions  that  tend  to  criminate  and  those  that  tend  to  de- 
grade, the  constitutional  protection  extending  in  the  first  in- 
stance against  questions  whether  material  or  not,  while  in 
the  second  instance  the  statutory  protection  extends  only  to 
questions  which  are  not  material  to  the  issue. 

(a)  Where  privilege  as  to  self -crimination  ceases. — As  in 
the  following  cases  the  witness  would  not  be  liable  to  the  law's 
punishment,  his  privilege  as  to  self-incrimination  ceases : 

Conviction  and  the  suffering  of  the  punishment;  acquittal; 
former  jeopardy  (except  a  former  trial,  upon  a  rehearing  or  new 


194 


COURTS-MARTIAL, — EVIDENCE.  If    234 

trial,  or  where  a  rehearing  or  new  trial  has  been  or  may  be 
ordered) ;  abolition  of  the  general  crime,  subsequent  to  its 
commission  (provided  the  rule  of  criminal  law  thereby  exon- 
erates prior  offenders)  ;  lapse  of  time  barring  prosecution  of 
the  particular  offense;  executive  pardon  for  the  particular 
offense;  statutory  amnesty,  before  or  after  the  act,  for  the 
particular  criminal  act  or  for  the  offender.  (Wigmore,  p. 
3163.) 

234.  PRIVILEGE  AGAINST  SELF- CRIMINATION  is  A  PERSONAL 
ONE. — The  privilege  of  a  witness  to  refuse  to  respond  to  a 
question,  the  answer  to  which  may  incriminate  him,  is  a  per- 
sonal one,  which  the  witness  may  exercise  or  waive  as  he  may 
see  fit.    It  is  not  for  the  trial  judge  advocate  or  accused  to 
object  to  the  question  or  to  check  the  witness,  or  for  the  court 
to  exclude  the  question  or  direct  the  witness  not  to  answer. 
Where  it  appears  that  the  witness  is  ignorant  of  his  rights 
and  that  the  answer  to  a  question  might  incriminate  him, 
the  president  of  the  court  will  inform  him  of  his  right  to 
decline  to  make  any  answer  which  might  tend  to  incriminate 
him. 

235.  PROCEDURE  WHERE  ALLEGED  INCRIMINATING  QUESTION 
Is  ASKED. — Where  the  court  overrules  an  objection  made  by 
a  witness  that  the  answer  to  a  question  will  incriminate  him 
the  witness  should  answer  the  question.    If  he  is  a  person 
subject  to  military  law  and  refuses  to  answer,  charges  may  be 
preferred  against  him  under  A.  W.  D6.    If  he  is  a  civilian 
witness  the  facts  should  be  certified  to  the  United  States  dis- 
trict attorney  by  the  court  with  a  view  to  his  prosecution  as 
provided  in  A.  W.  23.     (See  A.  W.  23  as  to  other  tribunals 
and  agencies.)     In  any  case  of  refusal  to  answer  a  question 
after  the  court  has  held  it  to  be  a  proper  one,  the  refusal  may 
be  commented  on  by  the  trial  judge  advocate  or  counsel  in  his 
remarks  to  the  court, 

236.  NOT  SEIjF-CRIMINATION  TO  REQUIRE  ACCUSED  TO  SuB- 

MIT  TO  PHYSICAL  EXAMINATION. — "The  prohibition  of  the 
fifth  amendment  against  compelling  a  man  to  give  evidence 
against  himself  is  a  prohibition  of  the  use  of  physical  or 
moral  compulsion  to  extort  communications  from  him  and 
not  an  exclusion  of  his  body  as  evidence  when  it  is  material." 
(Holt  v.  U.  S.,  218  U.  S.,  245.) 

195 


^f    236  CHAPTER  XI. 

The  following  are  illustrations  of  what  might  be  required 
without  violating  the  privilege  contained  in  A.  W.  24.  or  the 
principle  embodied  in  the  fifth  amendment: 

(a)  The  admission  of  testimony  as  to  marks  and  scars 
found  upon  the  person  of  a  defendant,  in  a  criminal  prosecu- 
tion, during  a  forcible  examination  of  him  with  a  view  to 
ascertaining  his  identity  for  the  purpose  of  arresting  him,  is 
not  prohibited.    (O'Brien  v.  Indiana,  L.  R.  A.,  Book  9, 1890, 
p.  323;  see  also  12  Cyc.,  401.) 

(b)  Upon  the  trial,  a  question  was  raised  as  to  the  identity 
of  the  defendant.    One  witness  testified  that  he  knew  the  de- 
fendant, and  knew  that  he  had  tattoo  marks  (a  female  head 
and  bust)  on  his  right  forearm.    The  court  thereupon  com- 
pelled the  defendant,  against  his  objection,  to  exhibit  his  arm, 
in  such  a  manner  as  to  show  the  marks  to  the  jury.    (State  v. 
Ah  Chuey,  alias  Sam  Good,  14  Nev.,  79.) 

(c)  An  officer  of  the  Army  was  "ordered  to  a  place  for 
identification  by  civilian  witnesses  in  relation  to  charges 
which  were  pending  against  the  officer,  and  it  was  held  that 
such  an  order  would  not  be  in  violation  of  the  officer's  privi- 
lege, as  it  called  for  no  testimonial  communication  from  him. 

It  follows  that  it  would  be  appropriate  for  the  court  to 
order  the  accused  to  remove  his  clothing  for  the  purpose  of 
examination  by  the  court  or  by  a  surgeon  who  would  later 
testify  as  to  the  results  of  his  examination ;  and,  upon  refusal 
to  obey  the  order,  the  accused  might  have  his v  clothing  re- 
moved by  force.  The  accused  might  likewise  be  compelled 
to  try  on  clothing  or  shoes  or  place  his  bare  foot  in  tracks, 
etc.  But,  where  resort  to  extreme  force  would  be  necessary 
to  compel  compliance  in  the  presence  of  the  court,  it  would 
comport  more  with  the  dignity  of  the  court  to  have  a  surgeon 
make  the  examination  out  of  the  presence  of  the  court  and 
testify  as  to  the  result  of  the  examination,  or  to  advise  the 
accused  as  to  the  purpose  of  the  examination,  and  to  warn 
him  that  his  refusal  to  obey  would  be  considered  as  an  ad- 
mission on  his  part  of  what  was  sought  to  be  ascertained 
by  the  examination.  This  conclusion  would  be  quite  within 
legal  bounds  as  to  presumption  of  facts. 


196 


COUKTS-MAKTIAL — EVIDENCE.  ^   236a 

SECTION  IV. 
DOCUMENTS. 

236a.  General  Rules  Applicable  to  Documents. — In  the  use  of 
documents  (written  or  printed)  in  evidence,  there  are  four 
fundamental  rules  to  be  satisfied,  each  of  them  resting  on  ex- 
perience demonstrating  them  to  be  necessary  or  useful,  where 
any  real  dispute  exists. 

(1)  Rule   1. — Production  of  the  Original. — When  the  con- 
tents of  a  document  are  to  be  proved,  the  original  should  be 
produced,  if  it  can  be  obtained;  if  not,  and  then  only,  resort  may 
be  had  to  a  copy,  or  to  oral  testimony  based  on  recollection. 

(2)  Rule  2. — Giving  Testimonial  Status  to  a  Writing. — When 
a  document  is  not  one  having  a  per  se  legal  effect  (such  as  a 
note,  check,  deed,  or  will)  it  is  virtually  written  testimony. 
Hence,  it  must  be  made  a  part  of  the  testimony  of  some  witness, 
who  on  the  stand  adopts  it  and  verifies  it.    Two  common  appli- 
cations of  this  are  the  use  of  memoranda  (par.  241)  and  maps, 
etc.  (par.  245). 

(3)  Rule   3.— Hearsay 'Rule;   Exception   for   Official   State- 
ments.— When  a  document  is  of  the  foregoing  sort,  i.  e.,  a  testi- 
monial writing  requiring  adoption  by  some  witness,  and  if  the 
author  of  it  does  not  appear  as  a  witness,  it  remains  only  as  a 
hearsay  statement,  i.  e.,  by  some  one  not  sworn  or  cross-examined ; 
hence  it  can  be  received  only  under  some  exception  to  the  hear- 
say rule  (par.  221).    Entries  in  books  of  accounts  of  deceased 
persons  (par.  244)  are  an  example  of  this.    Official  records  and 
certificates  (pars.  238  and  238a)  are  another  common  example; 
here  the  principle  is  that  an  official  statement  is  admissible  only 
if  the  officer  making  it  had  the  duty  or  authority  to  do  or  to 
know  the  matter  stated  by  him. 

A  principal  application  of  this  rule  occurs  where  a  purporting 
copy  is  offered  to  prove  the  contents  of  an  original  not  available 
for  production  under  Rule  (1)  above.  Here  the  copy,  being 
somebody's  testimony  to  the  contents  of  the  original,  must  be 
verified  by  calling  a  witness  to  the  stand;  or  else  the  statement 
of  the  absent  person  signing  it  as  a  true  copy  must  be  received 
under  the  exception  to  the  hearsay  rule  for  official  statements 
(pars.  238  and  238a). 


197 


Tf  236b  CHAPTER  xi. 

(4.)  Rule  4. — Authentication. — Any  and  every  document  must 
be  authenticated;  i.  e.,  it  must  be  shown  to  have  been  actually 
made  by  the  person  who  purports  to  have  made  it;  in  short,  its 
genuineness  must  be  shown.  This  may  be  proved  like  any  other 
fact — by  calling  a  witness  who  saw  it  executed,  or,  specially, 
by  calling  a  witness  to  the  style  of  handwriting  (par.  240). 
It  may  also  be  done  by  using  the  (hearsay)  statement  of  an  ab- 
sent person,  under  the  exception  for  official  statements  (pars.  238 
and  238a),  as  where  a  notary's  certificate  of  the  party's  acknowl- 
edgment is  used,  or  where  an  official  copy  by  the  custodian  is 
used. 

In  all  such  cases  of  the  use  of  official  documents,  proof  of 
genuineness  is  facilitated  by  the  presumption  of  genuineness 
which  attaches  to  an  official  seal  or  signature,  with  recital  of 
the  official  title  of  the  person  signing.  No  further  evidence  of 
genuineness  is  needed,  where  this  presumption  applies. 

The  foregoing  four  principles  are  not  all  called  into  play  for 
every  document,  but  sometimes  one,  sometimes  two  or  more,  are 
concerned  in  using  the  same  document.  But  all  of  the  ensuing 
specific  rules  are  based  on,  and  reducible  to,  one  or  another  of 
the  foregoing  four  principles.  Hence,  the  question  will  be,  in 
every  case  of  objection  to  a  document,  which  one  or  more  of 
these  principles  is  at  the  root  of  the  objection,  and  thus  it  may 
be  determined  how  to  overcome  the  objection  and  satisfy  the 
requirement  of  the  principle  involved. 

236b.  Writings  Not  in  Dispute. — Where  a  document  is  offered 
in  evidence,  the  application  of  the  foregoing  principles,  viz,  that 
the  original  be  produced  if  available;  that  a  testimonial  writing 
be  verified  on  the  stand,  or,  if  not,  that  the  document  or  entry 
be  made  by  an  officer  having  a  duty  to  make  it;  that  an  official 
copy  be  shown  to  have  been  made  by  an  officer  having  custody 
of  the  original;  and  that  the  signature  be  authenticated;  should 
not  be  rigorously  enforced  where  it  appears  to  the  court  there  is 
no  real  issue  or  dispute  as  to  the  correctness  or  authenticity  of 
the  document  or  entry.  Unless  such  strict  proof  is  called  for,  on 
the  request  of  the  accused,  or  by  reason  of  necessity  of  showing 
in  the  record  the  facts  giving  jurisdiction  or  involving  the  sub- 
stance of  the  offense,  the  observance  of  the  general  rules  in  every 
detail  will  not  ordinarily  be  deemed  a  requisite. 


108 


COURTS-MARTIAL — EVIDENCE.  f    237 

(RULE  1:) 

237.  MANNER  OF  PROVING  CONTENTS  OP  WRITING. — 
A  writing  is  the  best  evidence  of  its  own  contents 
and  must  be  introduced  to  prove  its  contents.  But  if 
it  has  been  lost  or  destroyed  or  it  is  otherwise  satis- 
factorily shown  that  the  writing  can  not  be  produced, 
then  the  contents  may  be  proved  by  a  copy  or  by  oral 
testimony  of  witnesses  who  have  seen  the  writing. 
Under  this  rule  if  it  is  desired  to  prove  the  contents  of  a 
private  letter  or  other  unofficial  paper,  or  an  official 
paper  such  as  a  pay  voucher,  written  claim  against  the 
Government,  pay  roll  or  muster  roll,  company  morning 
report,  enlistment  paper,  etc.,  the  strict  and  formal 
method  of  doing  so  is  to  prove  by  proper  evidence  that 
the  writing  is  in  fact  what  it  purports  to  be,  and  then 
introduce  in  evidence  the  original  or  a  properly  authen- 
ticated copy. 

When  the  original  consists  of  numerous  writings 
which  can  not  conveniently  be  examined  by  the  court, 
and  the  fact  to  be  proved  is  the  general  result  of  the 
whole  collection,  and  that  result  is  capable  of  being 
ascertained  by  calculation,  the  calculation  may  be  made 
by  some  competent  person  and  the  result  of  the  calcula- 
tion testified  to  by  him,  as,  for  instance,  if  the  fact  to 
be  proved  is  the  balance  shown  by  account  books.  In 
such  case  the  opposite  party  should  have  access  to  the 
books  and  papers  from  which  the  calculation  is  made. 

It  is  customary  for  the  party  introducing  a  writing  in 
evidence  to  read  it  to  the  court.     But  unless  the  court 
directs  it  to  be  read  at  once  it  may  be  read  at  any  time. 
NOTE. — Care  must  be  exercised  in  making  use  of  the  foregoing  re- 
laxation of  the  general  rule  relating  to  testimony  resulting  from  ex- 
amination  of   numerous  writings.     Thus,   for    example,   where   on   a 
prosecution  for  embezzlement  of  company  funds  the  only  evidence  for 
the  prosecution  of  the  amount  which  should  have  been  in  the  fund, 
was  that  of  an  officer  who  testified  that  he  had  examined  the  books 
and  found  the  shortage  complained  of,  it  was  held  that  this  evidence 
was  incompetent,  and  so  much  of  the  finding  of  guilty  as  was  based  on 
that   evidence  was  disapproved,   because  the   books  themselves,   con- 
stituting the  best  evidence,  were  not  introduced  in  evidence;    since, 
while  the  rule  is  that  where  the  originals  consist  of  numerous  docu- 


199 


^  237a  CHAPTER  xi. 

ments  which  can  not  be  conveniently  examined  in  court,  and  the  fact 
to  be  proved  is  the  general  result  of  an  examination  of  the  whole  col- 
lection, evidence  may  be  given  of  the  result  by  any  person  who  has. 
examined  the  documents  and  who  is  skilled  in  such  matters,  provided 
the  result  is  capable  of  being  ascertained  by  calculation,  yet  it  was  not 
shown  in  that  case  (a)  that  the  books  could  not  have  been  conveniently 
examined  by  the  court,  nor  (b)  that  the  officer  testifying  was  "  skilled 
in  such  matters."  (C.  M.  130729,  Tengler,  June  4,  1919.)  In  such 
cases  it  must  be  shown  to  the  court  that: 

(a)  The  writings  are  so  numerous  or  bulky  that  they  can  not  con- 
veniently be  examined  by  the  court. 

(b)  The  fact  to  be  proved  is  the  general  result  of  the  whole  collec- 
tion. 

(c)  The  result  is  capable  of  being  ascertained  by  calculation. 

(d)  The  witness  is  a  person  skilled  in  such  matters,  and  capable  of 
making  the  calculation. 

(e)  He  has  examined  the  whole   collection  and  has  made   such  a 
calculation. 

(f)  The  opposite  party  has  had  access  to  the  books  and  papers  from 
which  the  calculation  is  made. 

(g)  Opportunity  is  afforded  the  opposite  party  to  cross-examine  the 
witness  upon  the  books  and  papers  in  question,  and  to  have  them,  or 
such  of  them  as  the  cross-examiner  may  desire  (or  properly  authenti- 
cated or  proved  copies),  produced  in  court  for  the  purposes  of  the 
cross  examination. 

23 7a.  Report  of  Investigating  Officer — Summary  of  Evidence 
of  Preliminary  Investigation. — Neither  the  report  of  an  investi- 
gating officer  nor  the  summary  of  the  testimony  of  a  witness  on  a 
preliminary  investigation  of  a  charge  is  competent  evidence, 
whether  or  not  the  investigating  officer  or  the  witness  in  question 
be  called  as  a  witness  at  the  trial.  The  witness  should  be  re- 
quired to  testify  personally  to  the  facts,  regardless  of  any  former 
statement. 

NOTE  1. — On  cross-examination  he  may  be  asked  if  he  did  not  say 
such  or  such  a  thing  or  things  in  his  former  statement  or  report,  for 
the  purpose  of  testing  his  memory,  accuracy,  or  veracity,  or  of  laying 
a  foundation  to  impeach  him;  and,  if  the  cross-examiner  reads  any 
part  of  the  report  or  former  statement  into  evidence  in  connection  with 
the  cross-examination,  the  opposite  party  may  offer  in  evidence  so 
much  of  the  do'cument  as  bears  upon 'the  same  immediate  subject,  for 
the  purpose  of  getting  the  whole  former  statement  of  the  witrfess  on 
that  immediate  subject  fairly  before  the  court. 

NOTE  2. — The  investigating  office*  can  hot  testify  to  any  statements 
made  to  him  in  the  course  of  the  investigation,  since  "his  repetition 
of  such  statements  would  be  hearsay.  The  witness  making  the  state- 


200 


COURTS-MARTIAL — EVIDENCE.  ^f    238 

ments  must  be  called  to  testify  to  the  facts.     (See  pars.  221  and  22Ia, 
supra,  "  Hearsay.") 
(RULE  1:) 

238.  PUBLIC  RECORDS. — An  important  exception  to  the 
rule  that  the  contents  of  a  writing  must  be  proved  by  the 
writing  itself  is  in  the  case  of  public  records  required 
to  be  preserved  on  file  in  a  public  office,  in  which  case 
duly  authenticated  copies  may  be  admitted  in  evidence 
equally  with  originals  without  first  proving  that  the 
originals  have  been  lost,  destroyed,  or  their  absence  ac- 
counted for  in  some  other  way.  This  exception  is  made 
necessary  by  the  inconvenience  to  the  public  business 
that  would  result  if  such  records  were  removed. 

War  Department  and  Army  Kecords. — Copies  of  any  rec- 
ords or  papers  in  the  War  Department,  in  any  of  its 
bureaus;  or  in  any  office  of  any  of  the  supply  depart- 
ments; or  at  the  headquarters  of  an  Army,  field  army, 
corps,  division,  brigade,  or  regiment ;  or  of  an  army  area, 
corps  area,  territorial  division,  territorial  department,  or 
post,  if  authenticated  by  the  impressed  stamp  of  the 
bureau,  office,  or  headquarters  having  custody  of  the 
originals  (for  example,  "  The  Adjutant  General's  Office, 
official  copy"),  may  be  admitted  in  evidence  equally 
with  the  originals  thereof  before  any  military  court, 
commission,  or  board,  or  in  any  administrative  matter 
under  the  War  Department,  provided  the  originals  would 
be  admissible  under  the  rules  of  evidence. 

NOTE. — It  is  to  be  borne  in  mind  that  the  mere  fact  that  a  docu- 
ment is~an  official  report  does  not  in  itself  make  it  admissible  in  evi- 
dence. It  must  be  admissible,  if  at  all,  either  under  the  general  rules 
of  evidence  or  under  some  specific  provision  of  law  or  of  this  Manual. 

RULE  3:) 

238a.  Certain  Official  Writings  Are  Evidence  of  Facts  Re- 
cited Therein. — Where  an  official  duty  or  authority  exists  to 
record  certain  facts  and  events,  the  writing  containing  the 
evidence  is  competent  (i.  e.,  prima  facie)  evidence  of  the 
facts  and  events  recorded  in  it,  without  calling  to  the  stand 
the  officer  who  made  it.  For  instance,  the  original  of  an  en- 
listment paper,  the  physical  examination  paper,  outline- 
figure  and  finger-print  card,  and  the  original  morning  re- 


201 


^f    239  CHAPTER  XI. 

port  sheet  are  competent  evidence  of  the  facts  recited  in 
them.  (A  descriptive  and  assignment  card,  however,  is 
not  an  original  paper.  All  the  information  it  contains  is 
compiled  from  other  original  sources,  and  therefore  it  is 
not  evidence  of  the  facts  recited  in  it.) 
(RULE  4:) 

239.  AUTHENTICATION  OF  WRITINGS. — In  order  to 
prove  that  a  writing  is  what  it  purports  to  be,  in  case  of 
a  private  letter,  the  person  who  received  the  letter  should 
testify  that  he  received  it  and  he  should  identify  it.  Then 
it  should  be  proved  that  the  signature  is  in  the  hand- 
writing of  the  purported  writer  of  the  letter.  But  in 
proving  the  genuineness  of  letters  the  rule  is  that  the  ar- 
rival by  mail  of  a  reply  purporting  to  be  from  the  ad- 
dressee of  a  prior  letter  duly  addressed  and  mailed,  is 
sufficient  evidence  of  the  genuineness  of  the  reply  to  jus- 
tify its  introduction  in  evidence.  A  similar  rule  prevails 
as  to  telegrams  purporting  to  be  from  the  addressee  of  a 
prior  telegram  or  telephone  message. 

If  the  writing  is  an  official  document  such  as  a  pay 
voucher,  the  person  having  official  custody  should  pro- 
duce it  in  court  and  testify  that  he  is  the  custodian  of  the 
writing  and  that  it  is  the  pay  voucher  of  the  person 
whose  name  is  signed.  The  signature  to  the  voucher 
should  be  proved  to  be  genuine  if  that^is  not  admitted. 
In  court-martial  practice  the  opposing  party  usually  ad- 
mits a  public  document  without  requiring  such  strict 
proof.  The  entries  in  pay  vouchers,  muster  and  pay 
rolls,  company  morning  reports,  and  other  public  rec- 
ords used  in  the  Army,  are  open  to  inspection  by  both 
parties,  and  contain  numerous  entries  not  pertaining  to 
the  case  being  tried.  It  is  the  practice,  in  the  absence  of 
an  objection,  to  prove  their  contents  by  the  oral  testimony 
of  a  witness,  usually  the  custodian,  reading  the  material 
matter  in  court. 

240.  COMPARISON  OF  HANDWRITING. — The  common-law  rule 
of  evidence  would  not  permit  a  comparison  of  handwriting 
unless  the  writing  to  be  used  as  a  standard  was  properly  in 
the  case'for  other  purposes  than  mere  comparison.  This  rule 


202 


COURTS-MAKTIAL — EVIDENCE.  II    241 

was  changed  by  act  of  Congress  approved  February  26,  1913 
(37  Stat.,  683),  which  provides— 

That  in  any  proceeding  before  a  court  or  judicial  officer  of 
the  United  States  where  the  genuineness  of  the  handwriting 
of  any  person  may  be  involved,  any  admitted  or  proved  hand- 
writing of  such  person  shall  be  competent  evidence  as  a  basis 
for  comparison  by  witnesses,  or  by  the  jury,  court,  or  officer 
conducting  such  preceding,  to  prove  or  disprove  such  genu- 
ineness. 

But  before  admitting  such  specimens  of  handwriting,  satis- 
factory evidence  should  be  offered  as  to  the  genuineness  of 
the  same. 

The  rule  prescribed  by  Congress  will  govern  in  court-mar- 
tial procedure. 

241.  USE  or  MEMORANDA. — Memoranda  may  be  used  to  aid 
the  memory  or  to  supply  facts  once  known  but  now  forgotten. 
Memoranda  are  therefore  of  two  sorts :  First,  if  the  witness 
does  not  actually  remember  the  facts  but  relies  on  the  memo- 
randum exclusively  (as  in  the  case  of  a  bookkeeper  using  an 
old  account  book) ,  then  the  witness  must  be  able  to  guarantee 
that  the  record  accurately  represented  his  knowledge  and 
recollection  at  the  time  of  its  making,  but  it  is  not  necessary 
that  he  should  himself  have  made  the  record  if  he  can  state 
from  his  present  recollection  that  it  was  correct  when  made 
and  the  entries  must  have  been  made  at  or  near  the  time,  and 
the  recollection  at  such  time  must  have  been  fresh  as  to  the 
facts  recorded.  Second,  if  the  witness  can  actually  remember 
the  facts  and  merely  needs  the  memorandum  to  stimulate 
or  revive  his  memory,  or  a  part  of  it,  then  the  above  limita- 
tions do  not  strictly  apply.  But  the  court  should  see  to  it 
that  no  attempt  is  made  to  use  such  a  paper  to  impose  a  false 
memory  on  the  court  under  guise  of  refreshing  it. 

The  memorandum  to  be  used  must  always,  on  demand,  be 
shown  to  the  opponent  for  purposes  of  inspection  and  cross- 
examination,  and  fairness  and  justice  require  that  where  a 
memorandum  is  consulted  before  trial  for  refreshing  a  wit- 
ness's recollection,  statement  should  be  made  by  the  trial 
judge  advocate  or  counsel  to  that  effect,  and  the  memoran- 
dum should  be  brought  into  court  by  the  side  whose  wit- 
ness has  so  consulted  it. 

203 


f    242  CHAPTER  XI. 

242.  MEMORANDUM  AS  EVIDENCE. — Where  a  memorandum 
does  not  serve  to  refresh  the  recollection  of  the  witness,  but 
he  can  state  that  it  was  made  when  his  memory  was  fresh  and 
can  give  the  guaranty  of  accuracy  and  recollection  called  for 
by  the  preceding  section,  the  memorandum  itself  will  be 
admissible.    Where  the  witness's  certainty  rests  on  his  usual 
habit  or  course  of  business  in  making  memoranda  or  records, 
it  is  sufficient. 

243.  MEMORANDUM     FOR     REFRESHING     RECOLLECTION. — 
Where  a  witness  states  that  the  memorandum  to  be  used 
refreshes  his  recollection  to  the  extent  of  his  now  remember- 
ing the  data  contained  therein,  the  common  rule  is  to  have 
him  testify  as  to  such  facts  without  admitting  in  evidence  the 
memorandum  itself. 

244.  BOOKS  OF  ACCOUNT. — Entries  in  books  of  account, 
where  such  books  are  proven  to  have  been  kept  in  the  regular 
course  of  business,  and  the  entrant  is  dead,  insane,  out  of  the 
jurisdiction  of  the  court,  or  otherwise  unavailable  to  testify, 
are  admissible  as  evidence.    Also  the  lack  of  an  entry  in  a 
series  of  written  entries  is  admissible  as  an  implied  state- 
ment that  no  events  occurred  of  the  kind  that  would  have 
been  recorded. 

Where  the  entrant  is  available  to  testify  in  court,  books 
of  account  will  be  used,  just  as  memoranda  are  used  for  the 
purpose  of  refreshing  the  recollection  of  the  witness,  and 
may  be  introduced  in  evidence  in  connection  with  his  testi- 
mony. 

Where  the  entrant  only  records  an  oral  report  or  written 
memorandum  made  in  the  regular  course  of  business  by  an- 
other person  or  persons,  such  other  person  or  persons,  if 
available,  must  be  called  to  testify. 

The  original  document  of  entry  must  be  produced  or  ac- 
counted for.  W'here  a  composite  entry  is  used,  the  extent  to 
which  intermediate  memoranda  must  be  produced  depends 
on  the  circumstances  of  each  case.  As  between  ledger  and 
daybook  or  other  kinds,  the  book  required  is  that  which  con- 
tains^the  first  regular  and  collected  record  of  the  transac- 
tions. (Wigmore,  sec.  1530.) 


204 


COURTS-MARTIAL — EVIDENCE.  If   245 

245.  MAPS,     PHOTOGRAPHS,    .ETC. — Maps,     photographs, 
sketches,  etc.,  as  to  localities,  wounds,  etc.,  are  admissible  as 
evidence  when , properly  verified  by  (1)  the  party  that  made 
them,  or  (2)  by  anyone  personally  acquainted  with  the  locality, 
object,  person,  etc.,  thereby  represented  or  pictured,  and  able  to 
state  their  correctness,  from  his  own  personal  knowledge  or 
observation,  or  (3)  when  coming  from  official  sources  that  are 
a  guaranty  of  truthfulness  and  accuracy.     This  character 
of  evidence  is  capable  of  gross  misrepresentation  of  facts  and 
should  be  carefully  scrutinized.     Finger  prints,  upon  such 
verification  or  guaranty,  are  admissible. 

SECTION  V. 
EXAMINATION  OF  WITNESSES. 

246.  WITNESSES  EXAMINED  APART  FROM  EACH  OTHER. — 
Witnesses,  after  having  been  first  sworn  as  provided  in  para- 
graph 134,  are  usually  examined  apart  from  each  other,  no 
witness  being  allowed  to  be  present  during  the  examination 
of  another  who  is  called  before  him.    But  this  rule  is  not 
inflexible;  it  is  in  practice  subject  to  the  discretion  of  the 
court,  nor  is  it  ever  so  rigidly  observed  as  to  exclude  the  tes- 
timony of  a  person  because  he  has  been  present  at  the  ex- 
amination of  other  witnesses ;  but  the  fact  of  such  presence  may 
be  commented  upon  in  argument  by  either  party,  in  relation  to 
the  weight  to  be  given  the  evidence  of  'the  witness, 

247.  OBJECTIONS  TO  COMPETENCY  ;  WHEN  MADE. — Any  ob- 
jection to  the  witness's  competency  should  be  made  before  he 
is  sworn.    If  his  incompetency  should  later  appear,  however, 
a  valid  objection  should  be  sustained,  or  the  court,  of  its  own 
motion,  should  refuse  to  hear  him  further,  and  order  that  any 
testimony  he  may  have  already  given  will  be  disregarded. 

248.  NUMBER  OF  WITNESSES  KEQUIRED. — Though  there  are 
occasional  dangers  in  trusting  to  a  single  witness,  the  testi- 
mony of  a  single  qualified  witness  to  the  facts  in  issue  would 
suffice  to  sustain  a  conviction,  except  as  to  (1)  treason,  where 
there  must  be  two  witnesses  testifying  credibly  to  the  same 
overt  act,  or  (2)  perjury,  where  there  must  be  either  (a)  a 


205 


^[    249  CHAPTER  XI. 

second  witness  to  the  falsity  alleged  or  (£)  a  corroboration 
of  a  single  witness  by  some  other  form  of  evidence.  The  rule 
as  to  perjury  does  not  apply,  however,  where  the  falsity  can 
be  inferred  from  a  contradictory  statement  made  by  the  ac- 
cused. (Wigmore's  P.  C.,  338,  339.)  For  instance,  where  a 
person  is  charged  with  a  perjury  as  to  facts  directly  dis- 
proved by  documentary  or  written  testimony  springing  from 
himself,  with  circumstances  showing  the  corrupt  intent;  in 
cases  where  the  perjury  charged  is  contradicted  by  a  public 
record,  proved  to  have  been  well  known  to  the  defendant 
when  he  took  the  oath ;  and  in  cases  where  the  false  swearing 
can  be  proved  by  his  own  letters  relating  to  the  fact  sworn 
to,  or  by  other  written  testimony  existing  and  being  found 
in  the  possession  of  a  defendant  and  which  has  been  treated 
by  him  as  containing  the  evidence  of  the  fact  recited  in  it. 
(U.  S.  v.  Wood,  14  Pet.,  430.) 

(See  par.  224  as  to  corroboration  of  an  accomplice  and  see 
par.  225  as  to  corroboration  of  a  confession.) 

249.  ORDER  OF  EXAMINATION  OF  WITNESSES. — The  proper 
and  usual  order  and  sequence  of  examination  of  witnesses 
contemplates  that  the  witnesses  for  the  prosecution  shall  be 
called  first  and  then  the  witnesses  for  the  accused,  and  after- 
wards the  witnesses  for  the  prosecution  in  rebuttal  of  testi- 
mony brought  out  by  the  accused,  and  then  the  witnesses  for 
the  accused  in  rebuttal  of  those  last  introduced  by  the  prose- 
cution, and  then  witnesses  by  the  court ;  and  that  the  method 
of  examining  each  witness  shall  be  direct  examination,  cross- 
examination,  redirect  examination,  recross-examination,  and 
examination  by  the  court.  However,  the  court  may,  in  the 
interest  of  truth  and  justice,  call  or  recall  witnesses,  or  per- 
mit their  recall  at  any  stage  of  the  proceedings;  it  may 
permit  material  testimony  to  be  introduced  by  either  party 
quite  out  of  its  regular  order  and  place,  or  permit  a  case  once 
closed  by  either  or  both  sides  to  be  reopened  for  the  introduc- 
tion of  testimony  previously  omitted,  if  convinced  that  such 
testimony  is  so  material  that  its  omission  would  leave  the 
investigation  incomplete.  In  all  such  cases  both  parties  must 
be  present,  and  any  testimony  thus  received  would  be  subject 
to  cross-examination  and  rebuttal  by  the  party  to  whom  it 
may  be  adverse. 

200 


COURTS-MARTIAL — EVIDENCE.  If    250 

250.  DIRECT  EXAMINATION — Identification  of  Accused. — The 
first  question  to  be  asked  each  witness,  whether  called  for  the 
prosecution  or  defense  or  by  the  court,  will  be,  whether  he 
knows  the  accused,  and  if  he  does  to  state  who  he  is.    This 
question  is  always  asked  by  the  trial  judge  advocate.     The 
accused  having  been  identified,  the  examination  of  the  witness 
is  continued  by  the  person  calling  him.    All  questions  and 
answers  are  recorded  in  full,  and  as  far  as  possible  in  the 
exact  language  of  the  witness.    If  an  objection  is  made  to  a 
question,  the  reason  for  the  objection  will  be  stated. 

The  identification  of  the  accused  should  be  carefully  proved, 
both  for  the  establishment  of  the  court's  jurisdiction  over  him, 
and  also  for  the  proof  of  his  actual  complicity  in  the  offense 
where  any  doubt  is  raised  on  this  point.  Attention  is  here  called 
to  the  specific  modes  mentioned  in  paragraph  223a  supra  (iden- 
tification), and. paragraph  239  supra  (documents),  and  to  the 
proof  of  the  allegations  required  by  paragraph  74b  to  be  made 
in  the  specifications,  as  to  the  accused's  name,  rank  or  grade, 
title,  and  organization. 

251.  CROSS-EXAMINATION. — In  general  the  cross-examina- 
tion will  be  limited  to  matters  brought  out  by  the  direct  ex- 
amination of  the  witness,  but  in  the  discretion  of  the  court 
exceptions  may  be  made  to  this  rule.    As  it  is  the  purpose  of 
the  cross-examination  to  test  the  credibility  of  the  witness 
it  is  permissible  to  investigate  the  situation  of  the  witness 
with  respect  to  the  parties  and  to  the  subject  of  the  litigation, 
his  interest,  his  motives,  inclinations,  and  prejudices,  his 
means  of  obtaining  a  correct  and  certain  knowledge  of  the 
facts  to  which  he  bears  testimony,  the  manner  in  which  he 
has  used  those  means,  his  powers  of  discernment,  memory, 
and  description.    Leading  questions  may  be  freely  used  on 
cross-examination.     (Davis,  p.  285.) 

252.  REDIRECT  AND  BECROSS-EXAMINATION. — Ordinarily  the 
redirect  examination  will  be  confined  to  matters  brought  out 
on  the  cross-examination,  and  the  recross-examination  will 
be  confined  to  matters  brought  out  on  the  redirect  examina- 
tion.   But  in  these  matters  the  court,  in  the  interest  of  truth 
and  justice,  should  be  liberal  in  relaxing  the  rule. 

253.  EXAMINATION  BY  THE  COURT. — The  court  or  a  member 
may  ask  questions  of  a  witness  when  it  is  apparent  that  the 


207 


Tf  253a  CHAPTER  xi. 

examination  of  the  witness  already  made  has  failed  to  bring 
out  matters  material  to  the  issues,  and  for  the  same  reasons  a 
witness  may  be  recalled  or  a  new  witness  summoned  by  the 
court. 

253a.  Questions  by  Members  of  the  Court. — Questions  asked 
by  members  of  the  court  and  testimony  sought  or  elicited  thereby 
are  subject  to  the  same  rules  of  evidence  as  though  the  questions 
had  been  proposed  by  the  trial  judge  advocate  or  counsel  for  the 
accused,  and  are  subject  to  objection  by  either  party  or  by  an- 
other member  of  the  court  in  the  same  manner  as  questions 
asked  by  the  trial  judge  advocate  or  the  defense.  No  questions 
should  be  asked  by  a  member  of  the  court  of  any  witness  called 
by  either  party,  nor  permitted  to  be  answered,  which  under  the 
rules  of  evidence,  neither  of  the  parties  could  ask.  It  is  the  duty 
of  members  of  the  court  to  carefully  observe  the  rules  of  evi- 
dence in  any  questions  they  may  ask,  and  the  duty  of  the  court 
to  enforce  the  rules,  of  its  own  motion,  and  without  waiting  for 
objection  from  either  party,  more  carefully,  if  anything,  against 
questions  asked  by  the  president  or  by  any  other  member  of  the 
court  than  against  questions  asked  by  the  trial  judge  advocate 
or  counsel  for  the  accused,  because  of  the  natural  hesitancy  of 
the  parties  themselves  to  object  to  questions  asked  by  a  member  of 
the  court,  and  because  improper  testimony  elicited  through  ques- 
tions by  members  of  the  court  is  likely  to  have  more  weight,  and 
any  error  in  admitting  it  likely  to  be  more  seriously  prejudicial 
to  the  accused  than  if  brought  out  by  questions  of  the  parties. 
If  new  matter  be  elicited  by  questions  of  the  court,  the  party 
toward  whom  such  new  matter  is  unfavorable,  will  be  permitted 
to  cross-examine" thereon,  whether  or  not  the  witness  was  called 
by  him. 

254.  LEADING  QUESTIONS — Double  Questions. — (a)  Leading 
Questions. — Leading  questions ;  that  is,  questions  which  either 
(1)  suggest  the  answer  it  is  desired  the  witness  shall  make, 
or  (2)  which,  embodying  a  material  fact,  are  susceptible  of 
being  answered  by  a  simple  yes  or  no,  must  not  be  asked 
on  direct  examination  of  a  witness  by  the  party  calling  him. 
For  example,  the  question,  "Did  you  hear  the  accused  say 
he  did  not  intend  to  come  back?"  would  be  leading.  The 
proper  form  of  the  question  would  be :  "  Did  the  accused  say 


208 


COURTS-MARTIAL — EVIDENCE.  ^[254 

anything?"  If  the  answer  is  in  the  affirmative,  add  "  State 
what  he  said."  Or,  where  a  knife  is  introduced  in  evidence 
a  witness  should  not  be  asked  on  direct  examination  whether 
that  is  the  knife  he  saw  the  accused  stab  Pvt.  A.  with,  but  he 
should  be  asked  first  whether  he  recognizes  the  knife,  and  if 
he  answers  that  he  does,  then  he  may  be  asked  where  he  saw 
it,  and  what  was  done  with  it,  etc. 

(b)  Double  Questions. — Double  questions  are  questions  embody- 
ing two  or  more  separate  elements  or  questions.  Double  ques- 
tions must  not  be  asked  either  on  direct  or  cross-examination, 
since  they  are  always  confusing  to  a  witness,  frequently  leading 
to  misunderstanding  and  unintentional  misstatements  by  the 
witness;  and  since,  furthermore,  particularly  if  asked  on  cross- 
examination  in  the  form  of  a  leading  question  to  which  a  direct 
answer  yes  or  no  may  be  demanded,  a  double  question  may  con- 
stitute a  trap  for  the  witness.  Such  a  question  may,  in  fact, 
not  be  susceptible  of  a  categorical  answer  either  yes  or  no.  It 
will  therefore  never  be  permitted  to  be  asked.  For  example,  the 
question  "  Did  you  see  the  accused  leave  his  quarters  with  a 
bundle  under  his  arm?"  is,  besides  being  leading,  a  double  ques- 
tion, and  may  not  be  susceptible  of  a  categorical  answer  yes  or 
no.  It  consists,  really,  of  three  questions,  viz:  (1)  Did  you  see 
the  accused?  (2)  If  so,  was  lie  leaving  his  quarters  when  you 
saw  him?  and  (3)  if  so,  did  he  have  a  bundle  under  his  arm? 
Manifestly  the  witness  may  have  seen  the  accused,  at  the  partic- 
ular time  in  question,  and  yet  not  have  seen  him  leave  Ms 
quarters,  and  not  have  seen  him  with  a  bundle  under  his  arm; 
or  he  may  have  seen  him  leave  his  quarters  but  without  a  bundle 
under  his  arm,  or  he  may  have  seen  him  with  a  bundle  under  his 
arm  but  not  leaving  his  quarters ;  or  again  he  may  have  seen  him 
(either  leaving  his  quarters  or  otherwise)  with  a  bundle,  but  not 
under  his  arm.  Each  of  these  various  circumstances  may,  very 
possibly,  have  a  material  bearing  on  the  case.  The  injustice  of 
such  a  question,  both  to  the  witness  and  to  the  accused,  and  its 
misleading  effect,  is  apparent  from  a  consideration  of  the  fact 
that  if  the  witness  be  required  to  answer  yes  or  no  to  such  a 
question  he  may,  for  instance,  answer  "  no,"  meaning  simply 
that  the  accused  when  he  saw  him  did  not  have  a  bundle  under 
his  arm,  or  perhaps  meaning  that  although  he  saw  the  accused 

21358°— 20 14 

209 


^   254  CHAPTER  XI. 

with  a  bundle  under  his  arm  he  was  not  then  in  the  act  of  leav- 
ing his  quarters.  But  the  negative  answer  may  be  construed  as 
a  complete  denial  of  having  seen  the  accused  at  all.  On  the 
other  hand,  if  he  should  answer  "  yes  "  to  the  question,  he  might . 
mean  simply  that  he  saw  the  accused  at  the  time  in  question, 
or  saw  him  leaving  his  quarters,  whereas  his  answer  would  be 
quite  properly  construed  as  meaning  that  he  not  only  saw  him 
at  the  time  in  question  but  also  in  the  act  of  leaving  his  quarters, 
and  with  a  bundle,  and  also  that  the  bundle  was  under  his  arm. 
Such  a  question  will  never  be  permitted  to  be  asked  of  a  witness 
at  any  time  or  under  any  circumstances. 

(c)  The  following  are  exceptions  to  the  rule  that  leading 
questions  will  not  be  asked: 

(1)  Leading  questions  ma}7  be  asked  on  cross-examination. 

(2)  To  abridge  the  proceedings,  the  witness  may  be  led  at 
once  to  points  011  which  he  is  to  testify.     The  rule  is  there- 
fore not  applicable  to  that  part  of  the  examination  of  a  wit- 
ness which  is  purely  introductory.     For  example,  in  a,  deser- 
tion case,  a  policeman,  who  apprehended  the  accused,  may  have 
his  attention  directed  at  once  to  the  occasion  by  such  a  ques- 
tion as  whether  at  a  certain  time  and  place  he  arrested  the 
accused,  but  it  is  improper  to  include  in  such  a  preliminary  ques- 
tion anything  which  may  bear  on  the  merits  of  the  controversy, 
as,  e.  g.,  that  he  arrested  the  accused  as  a  deserter.     (The  grounds 
of  the  arrest,  if  material,  should  be  brought  out  by  other — not 
leading — questions,  as,  for  example,  "What  did  you  say  to  the 
accused  when  you  arrested  him?")     The  witness  having  an- 
swered the  question  in  the  affirmative,  in  the  next  question  he 
might  properly  be  asked  to  state  the  details  connected  with 
the  arrest.     So  a  witness  might  properly  be  asked  whether  he 
was  present  at  a  certain  place  where  and  time  when  the  ac- 
cused was  placed  in  arrest  by  a  certain  officer  (unless  the  fact 
of  the  arrest  be  also  disputed).     The  witness  having  answered 
in  the  affirmative,  he  may  be  asked  to  state  all  the  circum- 
stances. 

(3)  When  the  witness  appears  to  be  hostile  to  the  party 
calling  him  or  is  manifestly  unwilling  to  give  evidence,  the 
court  may,  in  its  discretion,  permit  the  party  calling  him  to  put 
leading  questions. 


210 


COURTS-MAETIAL — EVIDENCE.  ^f   255 

(4)  When  there  is  an  erroneous  statement  in  the  testimony 
of  the  witness,  evidently  caused  by  want  of  recollection, 
which  a  suggestion  may  assist,  as,  for  instance,  where  he  mis- 
states a  date  or  an  hour  (provided,  no  attempt  is  made  to  get 
him  to  change  his  mind,  but  only  an  opportunity  offered  to  cor- 
rect, if  he  desires,  what  appears  manifestly  to  be  a  mere  slip  of 
the  tongue). 

(5)  Where,  from  the  nature  of  the  case,  the  mind  of  the 
witness  can  not  be  directed  to  the  subject  of  the  inquiry  with- 
out a  particular  specification  of  it,  as  where  he  is  called  to 
contradict  another  witness  who  has  testified  that  the  accused 
made  a  certain  statement  on  a  certain  occasion  in  the  hearing 
of  a  number  of  soldiers,  each  of  them  may  be  asked  whether 
he  heard  the  accused  make  the  statement. 

The  court,  in  its  discretion,  would  be  justified  in  allowing 
liberal  departures  from  the  rule;  but  must  always  be  careful, 
in  so  doing  (a)  not  to  allow  an  untruthful  witness  an  oppor- 
tunity to  reshape  his  testimony  as  he  thinks  counsel  desires,  or 
the  reverse,  or  to  try  to  match  it  up  with  the  testimony  of  other 
witnesses,  from  suggestions  he  may  gather  during  his  examina- 
tion, and  (b)  not  to  allow  either  the  trial  judge  advocate  or  coun- 
sel for  the  accused,  on  direct  examination,  to  intimate  to  a  wit- 
ness that  his  testimony  on  a  material  point  is  wrong,  or  ought  to 
be  changed  (except  within  the  limits  of  the  rules  above  stated). 

255.  RECALLING  or  WITNESSES. — Where  a  witness  is  re- 
called to  the  witness  stand  he  will  not  be  sworn  again,  but  will 
be  reminded  that  he  has  been  sworn  in  the  case  and  is  still 
under  oath.    A  failure  to  so  remind  him,  however,  does  not 
affect  the  validity  of  the  trial  and  will  not  be  ground  for  re- 
jecting the  testimony. 

SECTION  VI. 
CREDIBILITY  OF  WITNESSES. 

256.  WHAT  CREDIBILITY  CONSISTS  IN. — The  credibility  of 
a  witness  is  his  worthiness  of  belief,  and  is  determined  by  his 
character,  by  the  acuteness  of  his  powers  of  observation,  the 
Mccuracy  and  retentiveness  of  his  memory,  by  his  general 
manner  is  giving  evidence,  his  relation  to  the  matter  in  issue, 


211 


If    257  CHAPTER   XI. 

his  appearance  and  deportment,  prejudices,  by  his  general 
reputation  for  truth  and  veracity  in  the  community  where  he 
lives,  by  comparison  of  his  testimony  with  other  statements 
made  by  him  out  of  court,  by  comparison  of  his  testimony 
with  that  of  others,  etc.  From  all  these  the  court  will  draw 
its  own  conclusions  as  to  the  credibilty  of  the  witness,  attach- 
ing only  such  weight  to  his  evidence  as  all  the  facts  seem  to 
warrant.  There  may  even  be  cases  in  which  the  court 
will  reject  all  the  testimony  of  a  witness.  This  may  be  for 
any  of  the  reasons  set  forth  above.  No  statement  will  be 
made  by  the  court  of  the  weight  given  to  any  testimony  or 
the  amount  rejected,  except  as  it  may  desire  to  inform  the 
reviewing  authority  of  the  reasons  which  have  led  to  its 
findings. 

257.  PROOF   OF    CHARACTER   BY    GENERAL   REPUTATION. — • 
Where  impeachment  of  a  witness  for  bad  character  is  under- 
taken it  must  be  limited  to  proof  of  his  general  reputation 
for  truth  and  veracity  in  the  community  in  which  he  lives 
or  pursues  his  ordinary  vocation.     For  a  military  man  this 
would  mean  the  reputation  that  he  bore  amongst  the  mem- 
bers of  his  regiment  or  company,  or  organization  or  command, 
or  amongst  those  stationed  at  a  post,  or,  if  stationed  at  or 
near  a  town,  amongst  the  residents  of  the  town.     Personal 
opinion  as  to  his  character  is  not  admissible,  except  that  a 
witness  may,  after  testifying  that  he  knows  the  reputation  of  the 
person  in  question  as  to  truth  and  veracity  in  the  community  in 
which  he  so  resides  or  pursues  his  ordinary  avocation,  and  that 
such  reputation  is  bad,  be  further  asked  whether  or  not  from  his 
knowledge  of  such  reputation  he  would  believe  the  person  in 
question  on  oath. 

258.  CONVICTION  OF  CRIME. — Evidence  of  the  conviction  of 
any  crime,  even  by  a  foreign  tribunal  and  whether  felony  or 
misdemeanor,  is  admissible  for  the  purpose  of  diminishing 
the  credit  due  to  his  testimony.     (1  Greenleaf,  sec.  376.)     It 
is  allowable  to  ask  a  witness  on  cross-examination  whether  he 
has  ever  been  convicted  of  a  crime,  but  if  he  denies  it,  proof 
may  only  be  made  by  copy  of  the  record  of  his  conviction. 

258a.  Corroborative  Statements — Identification  of  Accused. — 
In  general,  a  witness  gains  no  corroboration  merely  by  repeat- 


212 


COURTS-MAKTIAL— EVIDENCE.  ^f   259 

ing  his  statements  a  number  of  times  to  the  same  effect.  Hence, 
similar  statements  made  by  a  witness  prior  to  the  trial  consistent 
with  his  present  testimony  are  in  general  not  admissible  to  cor- 
roborate him.  But  this  is  only  a  general  rule,  and  there  are  some 
situations  in  which  such  statements,  having  a  real  evidential 
value,  are  admissible.  For  example,  if  a  witness's  testimony  is 
impeached  on  the  ground  of  bias  due  to  a  quarrel  with  the  ac- 
cused, the  fact  that  he  made  an  assertion  similar  to  his  present 
testimony  before  the  date  of  the  quarrel  tends  to  show  that  his 
present  testimony  is  not  due  to  bias.  So,  also,  where  his  testi- 
mony is  sought  to  be  impeached  on  the  ground  of  collusion  or 
corruption,  the  circumstances  of  the  case  may  show  whether  such 
statements  should  be  admissible  as  having  such  evidential  value. 

259.  Contradiction  by  Other  Witnesses. — A  witness  may  be  im- 
peached by  calling  other  witnesses  to  contradict  some  part  of  his 
testimony.  How  seriously  this  may  affect  his  credibility  is  a  mat- 
ter to  be  determined  by  the  tribunal  upon  weighing  all  the  cir- 
cumstances. Assuming  that  the  tribunal  believes  the  fact  to  be 
as  asserted  by  the  contradicting  witness,  it  does  not  follow  that 
the  contradicted  witness  is  to  be  wholly  discredited ;  his  misstate- 
ment  may  have  been  due  to  error  of  memory  or  observation  on 
that  particular  point,  and  not  necessarily  to  deliberate  falsehood; 
and  he  may  even  have  falsified  on  that  particular  point  and  still 
be  speaking  the  truth  on  other  points.  So  that  no  general  rule 
can  be  laid  down  as  to  the  effect  to  be  given  to  a  proved  error  on 
one  point;  the  court  is  to  determine  the  credibility  of  the  witness 
on  other  points  in  the  light  of  all  the  circumstances. 

But  this  mode  of  impeachment  by  calling  other  witnesses  to 
contradict  is  subject  to  one  important  limitation,  viz,  the  matter 
upon  which  the  contradiction  is  offered  must  not  be  a  collateral 
one.  The  object  of  this  rule  is  to  prevent  the  prolongation  of 
the  trial  and  the  confusion  of  the  main  issues  by  entering  into 
numerous  controversies  on  minor  matters  which  are  not  material 
to  the  case  and  do  not  throw  substantial  light  on  the  credibility 
of  the  witnesses  as  to  the  main  issues.  Whether  a  matter  is  thus 
"  collateral "  depends  largely  on  the  circumstances  of  each  case. 
For  example,  in  a  trial  for  escape,  where  a  witness  for  the  prose- 
cution incidentally  states  that  he  had  seen  the  accused  and  two 
others,  naming  them,  buying  cigarettes  at  the  post  exchange  at  4 


213 


^f    260  CHAPTER  XI. 

p.  m.  the  day  before  the  alleged  escape,  contradiction  as  to  the 
purchase  being  of  cigars  and  not  cigarettes  would  ordinarily  be 
deemed  collateral. 

But  if  the  case  was  one  of  conspiracy  to  escape,  and  the  iden- 
tity of  one  of  the  conspirators  was  in  dispute,  and  a  certain  brand 
of  cigarettes  was  found  in  the  possession  of  all  three  accused,  then 
presumably  the  contradiction  as  to  the  purchase  being  of  cigars 
and  not  cigarettes  would  cease  to  be  collateral.  The  court's  dis- 
cretion must  here  be  used  to  allow  such  liberality  in  construing 
"  collateral "  as  will  best  tend  to  reveal  the  credibility  of  the  wit- 
ness in  all  its  aspects. 

NOTE. — By  "collateral  facts"  is  meant  facts  not  material  to  any 
issne  in  the  case  on  trial.  As  to  facts  material  to  tlie  issues  in  the 
case,  any  contradictory  statements  made  by  the  witness  out  of  court 
may  be  shown  by  the  testimony  of  other  witnesses.  (See  par.  282, 
infra.) 

260.  Inconsistent  Statements. — A  witness  may  be  impeached 
by  showing  that  he  has  made  elsewhere  statements  inconsistent 
with  his  testimony  on  the  stand.  Such  inconsistent  statements 
may  be  evidenced  by  asking  the  accused  on  cross  examination  to 
state  whether  he  made  them,  or  by  calling  other  witnesses  who 
will  testify  to  them. 

But  if  the  proof  is  desired  to  be  made  in  the  second  manner 
mentioned,  the  following  two  limitations  apply  and  must  be 
strictly  observed: 

(a)  The  matter  to  which  the   self -contradictory  statement 
refers  must  not  be  a  collateral  one :  "  collateral  "  here  being  con- 
strued in  the  same  sense  as  in  paragraph  259,  the  same  policy 
being  involved. 

(b)  While  the  witness  desired  to  be  impeached  is  on  the  stand 
for  cross-examination  his  attention  must  be  called  to  the  sup- 
posed statement,  by  mention  of  the  time,  place,  person  addressed, 
and  subject,  so  that  he  may  then  and  there  have  an  opportunity 
to  deny  it  or  to  explain  it,  if  he  sees  fit.    For  the  purpose  of  thus 
calling  his  attention,  he  may  be  recalled  to  the  stand  if  he 
had  already  left  it.    If  the  supposed  statement  is  contained  in 
a  writing,  this  also  must  be  mentioned,  and  he  may  be  asked 
to  identify  his  signature  on  it,  and  thus  save  calling  another 
witness  to  prove  the  signature.    But  it  is  not  necessary  in  thus 
calling  his  attention  to  a  writing  to  show  him  the  contents  of 


214 


COURTS-MARTIAL — EVIDENCE.  ^f   261 

the  writing  or  any  part  of  it  other  than  the  signature.  If  he  then 
admits  the  signature,  or  if  the  signature  is  later  proved  hy 
another  witness,  the  writing  is  to  be  introduced  at  the  proper 
time  later,  when  the  cross-examiner  is  putting  in  his  own  case. 

The  witness  may  of  course  make  any  explanation  he  desires 
as  to  the  supposed  statement,  either  on  cross-examination  when 
his  attention  is  called  to  it,  or  on  recall  for  the  purpose  when 
it  has  been  evidenced  by  calling  other  witnesses. 

261.  PREJUDICE,  BIAS,  ETC. — Prejudice,  bias,  relationship, 
etc.,  may  be  shown  to  diminish  the  credibility  of  the  witness, 
either  by  the  testimony  of  other  witnesses  or  by  cross-exami- 
nation of  the  witness  himself.    Such  matters  are  never  re- 
garded as  collateral. 

262.  CREDIBILITY  OF  ACCUSED  AS  A  WITNESS. — If  the  ac- 
cused testifies,  his  credibility  as  a  witness  may  be  attacked 
on  any  of  the  grounds  stated  in  the  preceding  paragraphs. 

NOTE. — If  the  contradictory  statement  was  made  in  the  course  of 
another  trial,  so  much  only  of  the  testimony  or  record  of  such  other 
trial  should  be  offered  as  shows  the  contradictory  statement;  it  would 
not  ordinarily  be  proper  to  offer  the  whole  record  of  that  case.  (C.  M. 
134184,  Benson,  June  25,  1919;  C.  M.  134*268,  Shannahan,  June  26, 
1919.) 

262^.  IMPEACHMENT  or  ONE'S  OWN  WITNESS. — The  general 
rule  is  that  a  party  can  not  impeach  his  own  witness.  This 
is  subject  to  but  few  exceptions;  as,  where  a  party  is  com- 
pelled to  call  a  witness  whom  the  law,  or  circumstances  of  the 
case,  make  indispensable,  or  where  a  witness  proves  unexpect- 
edly hostile  in  his  testimony  on  the  stand.  In  such  excepted 
cases  the  impeaching  party  must  first  show  that  the  evidence 
as  given  has  taken  him  by  surprise,  and  that  the  witness  is 
hostile.  The  witness  may  then  be  asked  if  he  has  made  con- 
tradictory statements  out  of  court,  the  time,  place,  and  cir- 
cumstances of  the  statement  being  described  to  him  in  detail, 
and  upon  his  denial  witnesses  may  be  called  in  proof  that  ha 
did  make  them.  In  order  that  one's  own  witness  may  be  con- 
tradicted, mere  silence  or  ignorance  on  his  part  is  not  suffi- 
cient. While  a  party  taken  by  surprise  may  impeach  his  own 
witness  in  the  cases  indicated,  he  is  not  permitted  to  attack  his 
reputation  by  showing  that  his  general  character  is  bad. 


215 


^[  263"  CHAPTER  XI. 

SECTION  VII. 
DEPOSITIONS  AND  FORMER  TESTIMONY. 

263.  DEPOSITIONS  ADMISSIBLE. — Depositions  taken  under 
the  provisions  of  A.  W.  25  and  26  "  may  be  read  in  evidence 
before  any  military  court  or  commission  in  any  case  not  capi- 
tal, or  in  any  proceeding  before  a  court  of  inquiry  or  military 
board."     (A.  W.  25.) 

NOTE. — A  case  referred  to  a  special  court-martial  for  trial  under 
the  second  proviso  of  A.  W.  12  is  not  "a  capital  case  "  within  the 
meaning  of  this  paragraph  or  of  A.  W.  25,  since  the  special  court- 
martial  has  no  power  to  impose  the  death  penalty. 

264.  DEPOSITIONS  FOR  DEFENSE  IN  CAPITAL  CASES. — Depo- 
sition testimony  may  be  adduced  for  the  defense  in  capital 
cases.     (A.  W.  25.)    Where  the  defense  calls  for  such  testi- 
mony in  capital  cases  the  witnesses  may  be  cross-examined 
as  fully  as  witnesses  in  a  case  not  capital. 

265.  OBJECTIONS  AS  TO  COMPETENCY  OF  WITNESS  AND  AD- 
MISSIBILITY OF  EVIDENCE. — The  same  rules  as  to  competency 
of  witnesses  and  admissibility  of  evidence  apply  in  the  taking 
of  evidence  by  deposition  that  apply  in  the  examination  of  a 
witness  before  the  court,  except  that  a  wider  latitude  than 
usual  should  be  allowed  as  to  leading  questions. 

If  the  interrogatories  and  cross-interrogatories  for  deposi- 
tions are  prepared  for  acceptance  by  the  court,  in  open  ses- 
sion, objection  to  the  competency  of  the  deponent,  if  grounds 
of  objection  are  known  at  the  time,  as  well  as  objections  to 
questions,  should  be  raised  at  such  session,  and  ordinarily  be 
passed  upon  by  the  court  at  that  time.  The  court  should, 
however,  in  the  interests  of  justice,  entertain  such  objections 
when  the  depositions  are  offered  in  evidence,  but  might  in  a 
proper  case  call  upon  the  trial  judge  advocate  or  counsel  for 
explanation  as  to  why  they  had  failed  to  make  the  objection 
at  the  proper  time. 

If  the  interrogatories  and  cross-interrogatories  are  agreed 
upon  by  both  parties  in  advance  of  the  assembling  of  the 
court — and  this  is  the  usual  practice — objections  to  questions 
and  to  the  admissibility  of  evidence  will  be  made  when  the 
depositions  are  offered  in  evidence. 

216 


COURTS-M MJTIAL — EVIDENCE.  ^f    266 

2G6.  EXAMINATION  OF  DEPOSITION  BY  COUNSEL. — Upon  re- 
ceipt of  the  deposition  the  trial  judge  advocate  will  advise 
the  accused  or  his  counsel  of  that  fact  and  will  give  them  an 
opportunity  to  examine  the  deposition  before  the  trial. 

267.  READING  OF  DEPOSITIONS. — Ordinarily  depositions  will 
be  read  to  the  court  by  the  party  in  whose  behalf  they  are 
taken,  but  if  the  accused  is  not  represented  by  counsel  the 
trial  judge  advocate  will  read  to  the  court  the  deposition 
taken  on  his  behalf,  unless  the  accused  requests  to  read  them, 
or  does  not  desire  to  offer  them.     (See  par.  268,  infra.)     After 
being  read  to  the  court  a  deposition  will  be  properly  marked 
for  identification  purposes  and  attached  to  the  record,  and 
the  record  will  show  that  it  has  been  introduced  and  read  to 
the  court. 

268.  MISCELLANEOUS  PROVISIONS  AS  TO  DEPOSITIONS. — The 
party  at  whose  instance  a  deposition  has  been  taken  is  not 
required  to  offer  it,  unless  he  sees  fit  to  do  so.    If  the  party  at 
whose  instance  a  deposition  has  been  taken  decides  not  to 
put  it  in,  the  opposite  party  may  (subject  to  the  general  rules 
as  to  competency,  materiality,  and  relevancy  of  evidence)  offer 
in  evidence  either  the  whole  or  any  competent  or  relevant  part 
of  it  which  is  not  clearly  fragmentary  and  misleading,  as  lie 
may  see  fit,  and  in  such  case  the  party  on  whose  behalf  it  was 
taken  may  put  in  evidence  any  other  like  part. 

The  trial  judge  advocate  should  not  be  permitted  (except  as 
stated  in  the  last  clause  of  the  preceding  sentence)  to  introduce 
only  such  parts  of  a  deposition  taken  at  his  instance  as  are 
favorable  to  him  or  as  he  may  elect  to  use;  he  must  offer  such 
a  deposition  in  evidence  as  a  whole  or  not  offer  it  at  all;  the 
accused,  however,  will  be  permitted  to  offer  either  the  whole  of 
a  deposition  taken  on  his  behalf  or  any  competent  or  relevant 
part  of  it  which  is  not  clearly  fragmentary  and  misleading,  as 
he  may  see  fit,  and  in  such  case  the  trial  judge  advocate  may  put 
in  evidence  any  other  like  part.  The  court  may  direct  either 
the  whole  or  any  competent  part  of  a  deposition,  not  clearly 
fragmentary  and  misleading,  if  not  offered  in  evidence  by  either 
party,  to  be  read  as  evidence  for  the  court  and  not  on  behalf 
of  either  party,  and  in  such  case  either  party  may  offer  and  put 
in  evidence  any  other  like  part  or  parts. 


217 


^f    269  CHAPTER  XI. 

NOTE. — "Upon  the  reading  of  a  deposition  or  any  part  of  it  offered  in 
evidence  by  either  party,  or  on  behalf  of  the  court,  under  any  of  the 
provisions  of  this  paragraph,  any  question  or  answer  or  exhibit  or 
any  part  thereof,  which  may  not  be  properly  admissible  under  the 
general  rules  of  evidence,  may  be  omitted,  or  ordered  suppressed  and 
disregarded  either  upon  the  motion  or  the  objection  of  the  party  offer- 
ing it,  or  of  the  opposite  party,  or  of  any  member  of  the  court. 

269.  AFFIDAVITS  NOT  ADMISSIBLE. — Affidavits  taken  with- 
out notice  and  not  as  depositions  under  the  provisions  of  A. 
W.  25  and  26  are  in  no  case  admissible  as  evidence  unless  ex- 
pressly consented  to  by  the  trial  judge  advocate  and  the 
accused  with  full  knowledge  of  his  rights. 

270.  CERTIFICATE  OF  DISCHARGE. — The  "  certificate  of  dis- 
charge "  may  be  used  by  the  defense,  either  before  or  after 
the  findings,  for  proof  of  good  character. 

271.  STATEMENT  OF  SERVICE. — The  statement  of  service  of 
the  accused,  as  found  on  the  front  page  of  the  charge  sheet, 
will  not  be  permitted  to  be  seen  or  examined  by  members  of 
the  general  or  special  court-martial  trying  him  until  after 
they  have  reached  their  findings.    In  the  event  of  conviction 
the  accused  will  be  asked  whether  such  statement  of  service 
is  correct,  and  such  statement  will  be  examined  and  con- 
sidered by  the  court,  together  with  the  evidence  of  previous 
convictions  of  the  accused,  if  any,  for  the  purpose  of  deter- 
mining proper  punishment  in  view  of  length  of  service. 
(See  pars.  306  and  307  infra.) 

The  statement  of  service  may,  nevertheless,  be  used  by  the 
defense,  either  before  or  after  the  findings,  for  proof  of  good 
character. 

272.  FORMER  TESTIMONY  BEFORE  COURT  OF  INQUIRY. — The 
record  of  the  proceedings  of  a  court  of  inquiry  may,  with  the 
consent  of  the  accused,  be  read  in  evidence  before  any  court- 
martial  or  military  commission  in  any  case  not  capital  nor 
extending  to  the  dismissal  of  an  officer,  and  may  also  be  read 
in  evidence  in  any  proceeding  before  a  court  of  inquiry  or 
a  military  board:  Provided,  That  such  evidence   may  be 
adduced  by  the  defense  in  capital  cases  or  cases  extending  to 
the  dismissal  of  an  officer.     (A.  W.  27.) 

The  same  tests  of  admissibility  laid  down  in  paragraph  275, 
infra,  as  to  examination  and  cross-examination  on  the  same 


218 


COURTS-MARTIAL — EVIDENCE.  ^f     273 

issues,  and  as  to  correctness  and  completeness  of  the  record, 
where  former  testimony  before  civil  courts  and  courts- 
martial  is  offered,  will  be  applied  where  a  record  of  a  court 
of  inquiry  is  offered. 

NOTE. — "Any  Case  Not  Capital  nor  Extending  to  the  Dismissal  of 
an  Officer." — No  case  referred  to  a  special  court-martial  for  trial  under 
the  provisions  of  the  second  proviso  to  A.  W.  12  as  amended  by  the 
code  of  1920  is  within  the  meaning  of  this  phrase  as  used  ia.  this  para- 
graph, since  the  special  court-martial  has  no  power  either  to  impose 
a  death  sentence  or  to  sentence  an  officer  to  dismissal. 

273.  EVIDENCE  OF  PARDON. — When  a  special  plea  in  bar  of 
trial,  based  on  a  pardon,  is  offered  by  the  defense,  the  best 
evidence  of  such  pardon,  if  in  the  nature  of  an  individual 
pardon,  will  be  the  document  signed  by  the  President  him- 
self, and,  if  in  the  nature  of  a  general  amnesty,  by  an  official 
copy  of  the  proclamation  or  order  publishing  such  amnesty. 
If  such  document  or  order  is  not  sufficiently  explicit  to  de- 
termine whether  or  not  the  offense  for  which  the  accused  is 
on  trial  is  the  same  as  that  covered  by  the  pardon,  then  other 
evidence  must  be  introduced  to  fill  the  gap.    Where  the  par- 
don is  in  the  nature  of  a  constructive  pardon,  the  evidence 
will  be  of  such  facts  and  circumstances  as  it  is  contended 
constitute  such  pardon. 

274.  EVIDENCE  OF  FORMER  TRIAL  BY  COURT-MARTIAL  OR 
CIVIL  COURT. — Where  a  plea  in  bar  of  trial,  based  on  a  former 
trial  by  court-martial  for  the  same  offense  and  conviction 
or  acquittal  of  the  same,  is  offered  for  the  defense  the  best 
evidence  of  such  conviction  or  acquittal  will  be  the  order  of 
the  reviewing  authority  publishing  the  case.     Where  such 
order  is  not  sufficiently  explicit  to  determine  whether  or  not 
the  offense  for  which  the  accused  is  on  trial  is  the  same  as 
that  the  conviction  or  acquittal  of  which  he  pleads  in  bar, 
then  the  original  court-martial  record  should  be  offered  in 
evidence. 

Where  a  plea  in  bar  is  on  a  former  trial  and  conviction  or 
acquittal  by  a  Federal  court — the  action  of  a  State  or  any 
other  than  a  Federal  court  does  not  operate  as  a  bar  to  second 
trial — the  best  evidence  of  such  conviction  or  acquittal  will 
be  a  duly  certified  copy  of  the  indictment  and  findings  and 
conviction  or  acquittal,  given  by  the  public  officer  whose  duty 
it  is  to  keep  the  original. 

219 


"ft    275  CHAPTER   XI. 

275.  Former  testimony  in  civil  courts  and  courts-martial. — 
Where  a  witness,  who  has  testified  in  either  a  Federal  or 
State  court  at  a  former  trial  of  the  same  person,  on  the  same 
issues  raised  in  the  case  on  trial,  and  was  fully  examined  and 
cross-examined,  is  dead  or  is  beyond  reach  of  the  process  of 
the  court  and  his  personal  attendance  can  not  be  secured, 
then  the  stenographic  report  of  his  testimony,  if  proven  to 
be  correct  and  complete  by  the  person  by  whom  it  was  re- 
ported, will  be  admissible  and  may  very  properly  be  accorded 
the  same  weight  as  a  deposition  duly  taken  on  notice.     (Ey. 
Co.  v.  Myers,  80  Fed.  Rep.,  361,  365.)     Ordinarily,  however, 
this  situation  should  be  met  by  the  trial  judge  advocate  and 
counsel  for  accused  procuring  in  advance  of  trial  a  transcript 
of  the  stenographer's  notes,  duly  sworn  to  by  him  as  correct 
and  complete,  and  submitting  it  to  the  opposite  party  for 
his  inspection.    If  acknowledged  to  be  correct  and  complete, 
then  such  transcript  will  be  received  in  evidence. 

Where  the  testimony  desired  is  of  a  witness  who  had  testi- 
fied in  a  former  trial  by  court-martial,  all  conditions  being 
approximately  the  same  as  those  cited  in  the  first  paragraph 
of  this  section,  so  much  of  the  original  court-martial  record 
itself  as  contains  the  desired  testimony  may  be  read  in  evi- 
dence, subject  in  all  cases  to  the  provisions  of  paragraph  377a 
infra,  and  the  stenographic  reporter  will  only  be  called 
where  a  question  is  raised  as  to  the  correctness  or  complete- 
ness of  the  recorded  testimony. 

SECTION  VIII. 
PRESUMPTION. 

276.  PRESUMPTIONS. — Presumptions  constitute  a  large  part 
of  the  law  of  evidence.    They  are  of  two  kinds — presumptions 
of  law  and  presumptions  of  fact. 

277.  PRESUMPTIONS  OF  LAW. — Broadly  speaking,  a   pre- 
sumption of  law  is  a  rule  of  law  that  when  certain  circum- 
stances exist  the  court  must  presume  certain  other  circum- 
stances.    Presumptions  of  law  are  divided  into  conclusive 
and  disputable  presumptions.    In  case  of  a  conclusive  pre- 


220 


COURTS-MARTIAL EVIDENCE.  If    278 

sumption  of  law  the  presumption  can  not  be  contradicted. 
For  example,  all  residents  of  a  country  are  conclusively  pre- 
sumed to  know  its  laws.  This  presumption  is  in  force  in  the 
practice  of  courts-martial  so  far  as  concerns  offenses  that  con- 
stitute civil  crimes.  (As  to  the  modification  of  the  rule  as 
regards  knowledge  of  the  Articles  of  War  in  case  of  re- 
cruits, see  par.  282 ;  as  to  intent,  par.  281 ;  as  to  ignorance  of 
law,  par.  282.)  In  case  of  a  disputable  presumption  of  law, 
the  presumption  can  be  contradicted.  For  example,  it  is  pre- 
sumed that  a  sane  person  intends  the  natural  and  probable 
consequences  of  his  acts ;  a  person  is  presumed  to  be  innocent 
until  proven  guilty ;  all  persons  are  presumed  to  be  sane ;  per- 
sons acting  as  public  officers  are  presumed  to  be  legally  in 
office  and  to  properly  perform  their  duties;  and  malice  is 
presumed  from  the  use  of  a  deadly  weapon.  Evidence  may 
be  introduced  to  rebut  such  presumptions. 

278.  PRESUMPTIONS  OF  FACT. — Presumptions  of  fact  are 
nothing  more  than  logical  inferences,  from  facts  already 
proved,  as  to  the  existence  of  other  facts.  This  kind  of  a  pre- 
sumption is  not  made  as  a  rule  of  law  but  as  a  matter  of 
human  reason.  All  evidence  in  a  case,  except  that  which  di- 
rectly proves  the  allegations  in  the  specifications,  leads  at 
once  to  presumptions  of  fact.  Such  presumptions  are  the 
basis  of  all  circumstantial  evidence.  (See  pars.  203  and  204.) 
It  is  in  making  such  presumptions  that  the  members  of  the 
court  should  especially  exercise  their  common  sense  and  their 
knowledge  of  human  nature  and  the  ways  of  the  world. 
Facts  in  evidence  showing  a  motive  or  absence  of  motive  on 
the  part  of  the  accused,  preparations,  or  the  absence  of  prep- 
arations for  the  commission  of  crime,  a  failure  to  account  for 
suspicious  circumstances,  acts  showing  a  criminal  conscious- 
ness (as  concealment,  disguise,  or  flight),  the  suppression  of 
evidence,  the  possession  of  weapons  or  instruments  that 
might  have  been  used  in  the  commission  of  the  offense,  the 
possession  soon  after  larceny  or  embezzlement  of  the  articles 
stolen  or  embezzled,  are  a  proper  basis  for  presumptions  of 
fact. 

Also  where  the  existence  at  one  time  of  a  certain  condition 
or  state  of  things  of  a  continuing  nature  is  shown,  the  general 

221 


^[    279  CHAPTER  XI. 

presumption  arises  that  such  condition  or  state  continues  to 
exist,  until  the  contrary  is  shown,  so  long  as  is  usual  with  con- 
ditions or  things  of  that  particular  nature.  For  example, 
there  is  a  presumption  of  continuance  as  to  one's  residence, 
until  a  change  is  shown,  also  that  one  holding  an  office  con- 
tinues to  hold  it  until  the  end  of  the  term  for  which  appointed 
or  elected  and  that  personal  habits  have  not  changed.  There 
is  a  presumption  of  fact  from  the  regular  course  of  business 
in  the  Post  Office  Department  that  a  letter  when  properly 
deposited  in  a  post-office  box  or  in  the  place  in  which  letters 
for  mailing  are  usually  deposited,  postage  prepaid,  is  received 
by  the  addressee.  The  presumption  with  regard  to  the  de- 
livery of  letters  duly  posted  has  been  extended  and  applied 
to  the  delivery  of  telegrams  deposited  with  a  telegraph  com- 
pany for  transmission;  but  delivery  of  the  message  to  the 
telegraph  company  must  of  course  be  shown.  There  is  also 
a  presumption  of  fact  that  persons  of  the  same  name  are  the 
same  person.  The  strength  of  this  presumption  will  of 
course  depend  upon  how  common  the  name  is  and  other  cir- 
cumstances. 

279.  PRIMA  FACIE  EVIDENCE. — Prima  facie  evidence  is  that 
which  suffices  for  the  proof  of  a  particular  fact  until  con- 
tradicted and  overcome  by  other  evidence.    In  other  words, 
prima  facie  evidence  justifies  the  court  in  finding  the  facts 
presumed,  but  in  view  of  the  doctrine  of  reasonable  doubt  that 
always  inures  to  the  benefit  of  the  accused  from  a  considera- 
tion of  all  of  the  evidence  presented  the  court  is  not  required 
to  find  the  facts  presumed.    The  court  may  decide,  for  in- 
stance, that  the  prima  facie  evidence  presented  does  not 
outweigh  the  presumption  of  innocence. 

280.  INTENT  IN  CONNECTION  WITH  CROIES. — In  respect  to 
the  element  of  intent,  crimes  are  distinguished  as  follows: 
Those  in  which  a  distinct  and  specific  intent,  independent  of 
the  mere  act,  is  essential  to  constitute  the  offense,  as  murder, 
larceny,    burglary,    desertion,    and   mutiny;    and   those   in 
which  the  act  is  the  principal  feature,  the  existence  of  the 
wrongful  intent  being  simply  inferable  therefrom,  as  rape, 
perjury,  sleeping  on  post,  drunkenness  on  duty,  neglect  of 
duty.    In  cases  of  the  former  class  the  characteristic  intent 


222 


COURTS-MARTIAL — EVIDENCE.  IF  281 

must  be  established  affirmatively  as  a  separate  fact;  in  the 
latter  class  of  £ases  it  is  only  necessary  to  prove  the  unlawful 
act,  for  every  man  is  presumed  in  law  to  have  intended  to  do 
what  he  actually  does,  and  the  burden  of  proof  is  upon  him 
to  show  the  contrary.  (Winthrop,  p.  475.) 

281.  INTENT  IN  MILITARY  CASES. — Military  offenses  being 
created  by  statute,  the  peculiar  statutory  intent  described  in 
the  article,  if  there  be  one,  must  be  alleged  in  the  specification. 
The  enlistments  prohibited  in  A.  W.  54,  for  example,  must 
have  been  knowingly  made  in  order  to  constitute  an  of- 
fense under  the  statute.  It  is  similarly  essential  to  some  of 
the  offenses  described  in  A.  W.  55,  56,  and  57  that  they  be 
knowingly  committed;  offenses  under  A.  W.  83  and  84 
must  have  been  committed  "willfully  "  or  "  through  neglect" ; 
an  officer  quitting  his  post  on  tender  of  resignation  must  do  so 
"  with  intent  to  absent  himself  permanently  therefrom  "  to  be 
triable  for  the  offense  described  in  A  W.  28 ;  and  an  officer 
who  refuses  or  "  willfully  neglects  "  to  deliver  an  offender  to 
the  civil  authorities  upon  application  duly  made  by  such  au- 
thorities subjects  himself  by  such  refusal  or  willful  neglect 
to  the  penalties  set  forth  in  A.  W.  74.  (Davis,  642.) 

In  some  instances,  however,  as  in  the  offenses  described  in 
A.  W.  61  and  86,  no  statutory  intent  is  set  forth  in  the  article, 
and  none  need  be  alleged  in  the  specifications. 

In  still  other  cases,  while  no  intent  is  expressed  in  the 
article,  a  particular  intent  is,  nevertheless,  implied,  and  is, 
therefore,  an  essential  element  of  the  offense,  and  though  not 
required  to  be  alleged  in  the  specification,  must  be  established 
in  evidence.  Such  is  the  case  with  respect  to  the  offense 
of  desertion,  the  requisite  intent  being  either  not  to  return, 
to  avoid  hazardous  duty,  or  to  shirk  important  service. 

But  whether  the  intent  is  that  presumed  from  the  com- 
mission of  an  unlawful  act  or  is  the  specific  one  express  or 
implied  in  the  article  in  either  ca&e  the  prosecution  must  prove 
such  actual  intent.  If  the  evidence  does  not  substantiate  such 
intent,  the  accused  must  be  acquitted,  or  the  grade  of  the 
offense  reduced,  as,  for  instance,  from  assault  with  intent  to 
kill,  to  assault.  (See  also  pars.  74b,  158a,  and  158b,  supra.) 


^j    282  CHAPTER   XI. 

282.  IGNORANCE  OF  LAW. — Every  person  is  usually  pre- 
sumed to  know  the  provisions  of  Federal,  State,  and  munici- 
pal law  applicable  to  the  community  in  which  he  lives,  and  a 
person  subject  to   military  law  is  presumed,  in  addition 
thereto,  to  know  the  statute  law,  as  particularly  applicable 
to  the  Army,  as  well  as  Army  regulations,  the  different  manu- 
als, orders,  and  circulars  issued  for  the  information  and 
government  of  the  Army.    This  really  means  that  on  grounds 
of  public  policy  a  person  is  responsible  whether  he  knows  the 
law  or  not.    His  ignorance  is  immaterial. 

An  exception  may  sometimes  be  made  where  enlisted  men 
are  charged  with  the  knowledge  of  the  Articles  of  War.  This 
exception  would  be  based  primarily  upon  the  fact  that  A.  W. 
110  makes  it  one  of  the  features  of  enlistments  into  the  mili- 
tary service  that  certain  of  the  "  Articles  of  War  shall  be  read 
to  every  enlisted  man  at  the  time  of,  or  within  six  days  after, 
his  enlistment."  A.  W.  109  enjoins  that  he  shall  take  an  en- 
listment oath  in  which,  among  other  things,  he  swears  that 
he  will  observe  and  obey  military  orders  "  according  to  the 
»ules  and  Articles  of  War."  While  in  the  case  of  an  old  or 
reenlisted  soldier,  or  one  who  had  been  for  a  considerable 
period  in  the  service  and  had  had  a  sufficient  opportunity  to 
inform  himself  as  to  the  provisions  of  the  code,  a  failure  to 
have  complied  with  the  injunction  of  this  article  could 
scarcely  constitute  a  defense,  such  failure  might  perhaps  nave 
this  effect,  or  should  usually  at  least  act  as  an  extenuation  in 
the  case  of  a  recruit,  especially  one  imperfectly  acquainted 
with  the  English  language.  In  such  a  case  it  would  cer- 
tainly be  admissible  for  the  accused  to  show  the  fact,  and  if 
the  offense  charged  was  one  of  the  criminality  of  which  he 
could  not,  in  his  ignorance  of  military  law,  have  been  aware, 
or  the  gravity  of  which  he  could  not  have  appreciated,  the 
omission  of  the  reading  of  the  articles  upon  his  enlistment 
would  properly  be  regarded  by  the  court,  if  not  as  a  defense, 
certainly  as  a  palliation  of  his  misconduct.  (Winthrop, 
p.  438.) 

283.  IGNORANCE  OF  FACT. — It  is  generally  laid  down  that 
ignorance  of  fact  excuses  crime.    But  this  must  be  an  honest 
or  innocent  ignorance  and  not  an  ignorance  which  is  the  result 

224 


COURTS-MARTIAL — EVIDENCE.  If   284 

of  carelessness  or  fault.  The  theory,  of  course,  is  that  where 
a  bona  fide  ignorance  of  fact  exists  there  would  be  an  absence 
of  the  requisite  wrongful  intent.  The  general  rule  applies 
equally  to  military  cases,  and  the  ignorance,  to  constitute  a 
defense  therein,  must  appear  not  to  have  proceeded  from  any 
want  of  vigilance,  or  from  failure  to  make  the  inquiries  or 
obtain  the  information  reasonably  called  for  by  the  obliga- 
tions and  usages  of  the  service.  Thus  a  soldier  who  neglects 
to  report  for  guard  or  other  duty  because  ignorant  of  the  fact 
that  he  has  been  duly  detailed  therefor  is  not  guilty  of  a 
breach  of  A.  W.  61  unless  his  ignorance  is  a  result  of  his  own 
neglect  or  wrongdoing  (Winthrop,  p.  436) ;  and  if  the  soldier 
should  disobey  an  order  given  to  him  by  an  officer  in  civilian 
clothing  without  the  officer  having  first  stated  to  the  soldier 
that  he  was  an  officer,  where  the  soldier  did  not  know  that  he 
was  an  officer-nor  have  reason  to  believe  that  he  was  an  officer, 
then  his  ignorance  would  be  an  excuse  for  his  act  of  disobedi- 
ence which  might  otherwise  have  been  a  very  serious  offense. 
Of  course,  a  soldier  is  presumed — it  is  his  duty — to  know  the 
officers  of  his  command  where  reasonable  time  and  oppor- 
tunity after  joining  the  command  are  shown  to  have  existed 
for  this  purpose. 

NOTE. — See  Insanity  of  accused,  paragraph  219. 

284.  EVIDENCE  OF  DESERTION. — Absence  without  leave  is 
usually  proved  by  the  evidence  of  an  officer  or  noncommis- 
sioned officer  of  the  company  of  the  accused  to  the  effect  that 
he  was  absent  from  his  organization  without  authority  for  a 
certain  period,  but  if  such  witnesses  are  not  available  it  may 
be  proved  by  the  entries  on  the  morning  reports.  In  making 
the  latter  kind  of  proof,  that  portion  of  the  morning  report 
(or  reports)  relating  to  the  accused,  or  a  copy  of  it  certified 
by  the  officer  having  official  custody  thereof,  showing  the 
accused  was  absent  without  leave,  beginning  a  certain  date, 
and  (if  such  is  the  case)  was  dropped  as  a  deserter,  should 
be  attached  to  the  proceedings  as  an  exhibit.  But  the  morn- 
ing report,  even  though  it  refers  to  the  accused  as  a  "  de- 
serter," is  not  complete  evidence  of  desertion;  it  is  evidence 
only  of  absence  without  leave,  and  it  is  still  necessary  for  the 
trial  judge  advocate  to  prove  an  intent  to  remain  perina- 

21358°— 20 15 

225 


^[284  CHAPTER  XI. 

nently  absent,  or  else  to  avoid  hazardous  duty  or  to  shirk  im- 
portant service  (A.  W.  28) ;  that  is,  to  desert. 

The  condition  of  absence  without  leave  having  once  been 
shown  to  exist  will  be  presumed  to  continue  in  the  absence  of 
evidence  to  the  contrary  until  the  accused  came  again  under 
military  control.  It  is  therefore  necessary  to  prove  only  that 
the  accused  went  absent  without  leave  a  certain  date  and 
came  under  military  control  a  certain  date.  During  the  inter- 
mediate time  it  is  presumed  he  was  absent  without  leave. 

If  the  condition  of  absence  without  leave  is  much  pro- 
longed, and  there  is  no  satisfactory  explanation  of  it,  the 
court  may  be  justified  in  presuming  from  that  alone  an  intent 
to  remain  permanently  absent.  The  presumption  of  such 
intent  will  be  strengthened  by  such  circumstances  as  that 
the  accused  attempted  to  dispose  of  his  uniform  or  other 
property ;  that  substantially  all  his  clothes  were  missing  from 
his  locker  when  his  absence  was  discovered;  that  his  civilian 
clothes  were  missing;  that  he  attempted  to  board  a  train 
that  took  him  away  from  his  station;  that  he  purchased  a 
ticket  for  a  distant  point  or  was  arrested  or  surrendered  at 
a  considerable  distance  from  his  station;  that  while  absent 
he  was  in  the  neighborhood  of  military  posts  and  did  not 
surrender  to  the  military  authorities ;  that  he  was  dissatisfied 
in  his  company  or  with  the  military  service;  that  he  had 
made  remarks  indicating  an  intention  to  desert  the  service; 
that  he  was  under  charges  or  had  escaped  from  confinement 
at  the  time  he  absented  himself;  that  just  previous  to  ab- 
senting himself  he  stole  or  took  without  authority  money, 
civilian  clothes,  or  other  property  that  would  assist  him  in 
getting  away,  etc. 

On  the  other  hand,  such  incidents  are  not  always  incon- 
sistent with  a  guilt  of  mere  absence  without  leave.  They 
should  be  carefully  weighed  by  the  court.  Previous  excellent 
and  long  service,  the  fact  that  none  of  the  property  of  the  ac- 
cused was  missing  from  his  locker,  and  the  fact  that  he  was 
under  the  influence  of  intoxicating  liquor  or  drugs  when  he 
absented  himself,  and  that  he  continued  for  some  time  under 
their  influence,  etc.,  are  incidents  going  to  show  there  was 
not  an  intent  to  remain  permanently  absent. 

226 


COURTS-MAETIAL — EVIDENCE.  ^f   284 

NOTE. — Where,  to  a  charge  of  desertion,  accused  files  a  plea  deny- 
ing desertion  but  admitting  absence  without  leave,  and  pleading,  by 
exception  and  substitution,  not  guilty  of  violation  of  the  fifty-eighth 
article  of  -war,  but  guilty  of  violation  of  the  sixty-first  article  of  war, 
such  plea  of  guilty  is  net  in  itself  sufficient  basis  for  a  conviction  of 
desertion,  no  matter  how  long  the  absence  without  leave  thereby 
admitted;  since  the  plea,  which  mast  be  taken  as  a  whole,  expressly 
negatives  the  intent  to  desert.  In  case  of  such  a  plea  the  court  should 
receive  evidence  of  the  facts  and  circumstances  and  determine  from 
the  evidence  before  it,  as  upon  a  plea  of  not  guilty,  whether  or  not 
the  accused  is  in  fact  guilty  of  desertion  or  ©nly  of  the  lesser  included 
offense  of  absence  without  leave. 

The  fact  that  a  reward  has  been  paid  for  the  apprehension 
of  the  accused  as  a  deserter  neither  proves  nor  disproves  an 
intent  to  desert,  and  is  not  admissible  in  evidence  on  that  issue. 

So  also  the  opinions  of  witnesses  as  to  whether  the  accused 
intended  to  desert  and  statements  from  them  that  the  ac- 
cused is  a  "  deserter  "  or  "  deserted  "  are  not  only  incompetent, 
but  are  valueless  for  any  purpose  to  prove  desertion. 

(a)  Statutw^y  Rules  of  Evidence. — (1)  A.  W.  £8  provides 
that  it  shall  be  sufficient  proof  of  the  offense  of  desertion  by 
an  officer  that,  having  tendered  his  resignation  and  prior  to 
due  notice  of  the  acceptance  of  the  same,  he  quits  his  post  or 
proper  duties  without  leave  and  with  intent  to  absent  himself 
permanently  therefrom. 

(2)  And  similarly  in  the  case  of  a  soldier,  A.  W.  28  pro- 
vides that  it  shall  be  sufficient  proof  of  desertion  in  his  case 
when  it  is  proved  that,  without  having  first  received  a  regu- 
lar discharge,  he  again  enlists  in  the  Army  or  in  the  militia 
when  in  the  service  of  the  United  States,  or  in  the  Navy  or 
Marine  Corps  of  the  United  States,  or  in  any  foreign  army, 
and  shall,  further,  be  proof  of  fraudulent  enlistment  where 
the  enlistment  is  in  one  of  the  forces  of  the  United  States 
mentioned  above. 

(3)  And  also,  in  case  of  any  person  subject  to  military  law, 
A.  W.  28  provides  that  it  shall  be  sufficient  proof  of  desertion 
when  the  evidence  siiows  he  quit  his  organization  or  place  of 
duty  with  the  intent  to  avoid  hazardous  duty  or  to  shirk  im- 
portant service. 

170TE.— Subparagraphs  "(1)"  and  "(2)"  supra,  do  not  apply  to  (1) 
warrant  officers,  (2)  members  of  the  Army  Nurse  Corps,  (3)  Army  field 
clerks,  nor  (4)  field  clerks,  Quartermaster  Corps. 

227 


^f   285  CHAPTER   XI. 

285.  DRUNKENNESS  AS  SHOWING  ABSENCE  or  INTENT. — It 
is  a  general  rule  of  law  that  voluntary  drunkenness  is  not  an 
excuse  for  crime  committed  in  that  condition.  But  the  ques- 
tion whether  or  not  the  accused  was  drunk  at  the  time  of  the 
commission  of  the  criminal  act  may  be  material  as  going  to 
indicate  what  species  or  kind  of  offense  was  actually  com- 
mitted. Thus,  there  are  crimes  which  can  be  consummated 
only  where  a  peculiar  and  distinctive  intent  or  a  conscious 
deliberation  or  premeditation  has  concurred  with  the  act 
which  could  not  well  be  possessed  or  entertained  by  an  intoxi- 
cated person.  In  such  cases  evidence  of  the  drunken  condi- 
tion of  the  party  at  the  time  of  the  commission  of  the  alleged 
crime  is  held  admissible,  not  to  excuse  or  extenuate  the  act  as 
such,  but  to  aid  in  determining  whether,  in  view  of  the  state 
of  his  mind,  such  act  amounted  to  the  specific  crime  charged 
or  which  of  two  or  more  crimes  similar  but  distinguished  in 
degree  it  really  was  in  law.  Thus,  in  cases  of  such  offenses  as 
larceny,  robbery,  burglary,  and  passing  counterfeit  money, 
which  require  for  their  commission  a  certain  specific  intent, 
evidence  of  drunkenness  is  admissible  as  indicating  whether 
the  offender  was  capable  of  entertaining  this  intent  or 
whether  his  act  was  anything  more  than  a  mere  battery, 
trespass,  or  mistake.  So,  upon  an  indictment  for  murder, 
testimony  as  to  the  drunkenness  of  the  accused  at  the  time  of 
the  killing  may  ordinarily  be  admitted  as  indicating  a  mental 
excitement,  confusion,  or  unconsciousness  incompatible  under 
the  circumstances  of  the  case  with  premeditation  or  a  deliber- 
ate intent  to  take  life  and  as  reducing  the  crime  to  the  grade 
of  manslaughter.  On  the  other  hand,  where,  to  constitute  the 
legal  crime,  there  is  required  no  peculiar  intent — no  wrongful 
intent  other  than  that  inferable  from  the  act  itself — as  in 
cases  of  assault  and  battery,  rape,  or  arson,  evidence  that  the 
offender  was  intoxicated  would,  strictly,  not  be  admissible  in 
defense.  (Winthrop,  p.  440.) 

Where  drunkenness  is  pleaded  as  an  excuse  for  crime  such 
excuse  should  be  received  with  caution.  Drunkenness  is 
easily  simulated.  It  is  sometimes  resorted  to  for  the  purpose 
of  stimulating  the  nerves  to  the  point  of  committing  the  act. 
Where  premeditation  and  intent  first  exist,  followed  by  vol- 

228 


COURTS-MARTIAL — EVIDENCE.  ^f    286 

untary  drunkenness  and  the  commission  of  the  crime  during 
such  state  of  drunkenness,  the  necessary  intent  to  commit  the 
crime  will  be  presumed,  whatever  the  state  of  drunkenness 
at  the  time  of  its  commission  may  have  been. 

286.  DRUNKENNESS  IN  MILITARY  CASES. — In  military  cases, 
evidence  of  drunkenness  of  the  accused,  as  indicating  his 
state  of  mind  at  the  time  of  the  alleged  offense,  whether  it 
may  be  considered  as  properly  affecting  the  issue  to  be  tried, 
or  only  the  measure  of  punishment  to  be  adjudged  in  the 
event  of  conviction,  is  in  practice  always  admitted  in  evi- 
dence.   And  where  a  certain  knowledge  or  a  deliberate  pur- 
pose or  specific  intent  is  necessary  to  constitute  the  offense, 
as  in  cases  of  violations  of  A.  W.  63  or  A.  W.  64,  or  of  deser- 
tion, mutiny,  or  cowardice,  or  of  fraud  in  violation  of  A.  W. 
94,  the  drunkenness,  if  clearly  shown  in  evidence  to  have 
been  such  as  to  have  incapacitated  the  accused  from  having 
that  knowledge  or  entertaining  that  purpose  or  intent,  as,  for 
example,  in  cases  under  A.  W.  63  or  A.  W.  64  from  recognizing 
his  superior  officer  to  be  such,  or  from  entertaining  the  specific 
intent  to  disobey  a  lawful  command,  will  ordinarily  be  treated 
as  constituting  a  legal  defense  to  the  specific  act  charged. 

In  such  cases,  however,  if  the  drunken  act  has  involved  a 
disorder  or  neglect  of  duty  prejudicial  to  good  order  and 
military  discipline,  the  accused  may  be  convicted  of  that 
offense  under  A.  W.  96.  (Winthrop,  p.  441.) 

"  It  is  to  be  noted  that  drunkenness,  to  be  admitted  in  evidence 
or  to  constitute  a  defense,  need  not  be  caused  by  indulgence  in 
spirituous  liquors,  but  may,  with  the  same  effect,  result  from  the 
voluntary  excessive  use  of  an  intoxicating  drug."  (Winthrop, 
pp.  441-442.) 

287.  PROOF  or  DRUNKENNESS. — Upon  a  trial  for  drunken- 
ness it  is  not  essential  to  confine  the  testimony  to  a  description 
of  the  conduct  and  demeanor  of  the  accused,  but  it  is  ad- 
missible to  ask  a  witness  directly  if  the  accused  "  was  drunk," 
or  for  a  witness  to  state  that  the  accused  "  was  drunk,"  on  the 
occasion  or  under  the  circumstances  charged.    Such  a  state- 
ment is  not  viewed  by  the  authorities  as  of  the  class  of  ex- 
pressions of  opinion  which  are  properly  ruled  out  on  objec- 
tion unless  given  by  experts,  but  as  a  mere  statement  of  a 

229 


^[288  CHAPTER  XI. 

matter  of  observation,  palpable  to  persons  in  general,  and 
so,  proper  to  be  given  by  any  witness  as  a  fact  in  his  know- 
ledge. It  is  preferable  that  all  witnesses  introduced  to  prove 
drunkenness  should  describe  the  conduct  and  demeanor  of 
the  accused  in  addition  to  giving  their  opinion  as  to  whether 
the  accused  was  drunk,  but  in  every  ease  the  witness  will  also 
be  asked  the  direct  question  whether  the  accused  was  or  was  not 
drunk. 

288.  REASONABLE  DOUBT  AND  BURDEN  OF  PROOF. — In  order 
to  convict,  the  court  must  be  satisfied,  beyond  a  reasonable 
doubt,  that  the  accused  is  guilty  as  charged. 

By  "reasonable  doubt"  is  intended  not  fanciful  or  in- 
genious doubt  or  conjecture  but  substantial,  honest,  consci- 
entious doubt  suggested  by  the  material  evidence  in  the  case. 
It  is  an  honest,  substantial  misgiving,  generated  by  insuffi- 
ciency of  proof.  It  is  not  a  captious  doubt,  nor  a  doubt  sug- 
gested by  the  ingenuity  of  counsel  or  court  and  unwarranted 
by  the  testimony ;  nor  is  it  a  doubt  born  of  a  merciful  inclina- 
tion to  permit  the  defendant  to  escape  conviction,  nor 
prompted  by  sympathy  for  him  or  those  connected  with  him. 
The  meaning  of  the  rule  is  that  the  proof  must  be  such  as  to 
exclude  not  every  hypothesis  or  possibility  of  innocence  but 
any  fair  and  rational  hypothesis  except  that  of  guilt ;  what  is 
required  being  not  an  absolute  or  mathematical  but  a  moral 
certainty.  A  court-martial  which  acquits  because,  upon  the 
evidence,  tke  accused  may  possibly  be  innocent  falls  as  far 
short  of  appreciating  the  proper  amount  of  proof  required  in 
a  criminal  trial  as  does  a  court  which  convicts  because  the 
accused  is  probably  guilty.  (Winthrop,  p.  476.) 

In  trials  before  courts-martial  the  prosecution  has  upon  it 
the  burden  of  proving  the  guilt  of  the  accused  beyond  a 
reasonable  doubt,  and,  whatever  the  defense  of  the  accused 
may  be,  this  burden  never  changes.  After  the  evidence  is 
all  in  the  court  must  be  convinced  beyond  a  reasonable  doubt 
of  every  element  necessary  to  constitute  the  offense  in  order 
to  justify  it  in  convicting  the  accused  of  the  offense  charged. 

In  collateral  issues  arising  in  the  course  of  the  trial  as  to 
the  competency  of  witnesses,  the  admissibility  of  testimony, 
and  the  like,  the  burden  of  proof  rests  upon  the  party  who 

230 


COURTS-MARTIAL — EVIDENCE.  ^  289 

alleges  incompetency  or  objects  to  the  admission  of  particu- 
lar testimony.     (Davis,  p.  267.) 

SECTION  IX. 
JUDICIAL  NOTICE. 

289.  JUDICIAL  NOTICE. — Certain  kinds  of  facts  do  not  need 
to  be  evidenced  by  the  parties,  because  the  court  is  empowered 
to  recognize  the  existence  of  the  facts  without  any  formal  offer 
of  evidence.  This  recognition  of  the  facts  by  the  court,  dispensing 
with  the  introduction  of  evidence  thereon,  is  termed  "Judicial 
notice." 

1.  In  general,  the  matters  to  which  the  principle  applies  are 
of  three  sorts,  viz,  matters  which  a  court  is  officially  bound  to 
know  as  a  part  of  its  own  special  duty  and  function;  matters 
which  are  so  notorious  in  common  knowledge  of  all  intelligent 
persons  that  a  requirement  of  evidence  thereon  would  be  super- 
fluous; matters  which  are  so  easily  ascertainable  in  authentic 
form  that  the  court  may  readily  inform  itself  by  reference  to 
some  accessible  and  authentic  source  of  information.    Of  the  first 
sort,  an  example  is  the  law  itself,  of  which  the  court  naturally 
requires  no  proof.    Of  the  second  sort,  an  example  would  be  the 
fact  that  the  Philippine  Islands  are  located  in  the  tropics.     Of 
the  third  sort,  an  example  would  be  the  date  of  the  adoption  of 
the  United  States  Constitution,  or  the  name  of  the  present  incum- 
bent of  the  post  of  United  States  ambassador  to  Italy,  either  of 
which  could  be  ascertained  by  consulting  a  reliable  book  of  refer- 
ence. 

2.  The  principal  matters  upon  which  the  court  may  thus  be 
asked  to  take  judicial  notice  may  be  listed  as  follows : 

(1)  The  Constitution,  treaties,  and  other  general  laws  of 
the  United  States;  the  law  of  nations;  the  common  law; 
the  laws  of  the  State  in  which  the  court  is  sitting. 

(2)  The  great  seal  of  the  United  States,  and  those  of  the 
several  States;  the  seals  of  all  Federal  and  State  courts  of 
record;  the  seal  of  a  notary  public. 

(3)  The  ordinary  divisions  of  time,  as  to  years,  months, 
weeks,  days,  and  hours ;  general  facts  and  laws  of  nature^  in- 


231 


^289  CHAPTER  XI. 

eluding  their  ordinary  operations  and  effects;  and  general 
facts  of  American  history  and  world  history. 

(4)  The  political  organization  of  the  Government  of  the 
United  States  and  of  the  several  States,  and  their  chief  offi- 
cials; and  current  political  conditions  of  war  and  peace. 

(5)  The  organization  of  the  Army,  including  the  statutes 
and  regulations  relating  thereto,  the  bulletins  or  circulars 
of  the  War  Department,  the  Army  Regulations,  the  provi- 
sions of  this  Manual  and  of  the  several  other  official  man- 
uals, the  existence  and  location  of  military  departments  or 
corps  areas,  reservations,  posts,  and  stations  of  troops,  as 
published  to  the  Army ;  the  fact  that  an  officer  belongs  to  a 
certain  organization,  etc. 

(6)  General  and  special  orders  of  the  War  Department; 
general  court-martial  orders ;  general  and  special  orders  and 
bulletins  and  circulars  of  the  department  or  corps  area,  or 
other  command  in  which  the  court  is  sitting;  special  and 
summary  courts  taking  notice  of  the  orders,  bulletins  and 
circulars  of  the  commander  appointing  them  and  of  all  higher 
authority. 

(7)  Price  of  articles  furnished  by  the  Government  when 
published  to  the  Army  in  orders,  bulletins,  or  price  lists. 

3.  The  principle  of  judicial  notice  does  not  require  the  court  to 
take  notice  of  all  such  matters  of  the  above  sorts,  but  authorizes 
the  court  to  do  so.  When  in  a  specific  case  the  court  is  not  en- 
tirely satisfied  as  to  the  precise  tenor  of  the  fact  to  be  noticed,  it 
therefore  may  satisfy  its  mind  by  resort  to  any  authentic  and 
available  source  of  information,  such  as  a  book  of  statutes  or 
regulations,  a  collection  of  general  or  special  orders  or  bulletins, 
a  dictionary,  a  standard  work  of  history,  or  the  like.  This  resort 
to  authentic  sources  enables  the  court,  in  using  the  principle  of 
judicial  notice,  to  satisfy  itself  completely,  where  otherwise  it 
might  feel  disinclined  to  notice  the  fact.  For  example,  where  the 
terms  of  a  general  order  of  a  department  are  material,  the  court, 
though  not  having  actually  in  mind  the  precise  terms  of  the 
order,  will  send  for  and  refer  to  the  published  order  and  thus 
take  judicial  notice  of  its  terms.  So  also  where  a  special  order  of 
the  post  or  other  command  in  which  the  court  is  sitting  is  mate- 
rial, the  court  may  secure  from  the  files  of  the  adjutant  the  orig- 

232 


COUKTS-MARTIAL EVIDENCE.  ^f    289 

inal  order,  though  not  published,  and  satisfy  itself  of  the  exact 
terms,  On  this  principle  the  court  may  enable  itself  to  take  ju- 
dicial notice  of  numerous  facts,  within  the  above  classes,  on 
which  it  does  not  have  any  actual  knowledge  until  it  has  re- 
sorted to  a  suitable  authentic  source  of  information. 

The  general  principle  underlying  the  foregoing  instances  is 
that  the  court  is  authorized  in  these  general  classes  of  matters  to 
take  judicial  notice,  but  that  it  is  not  required  to  do  so  in  a  spe- 
cific instance  where  its  mind  is  actually  in  doubt  as  to  the  pre- 
cise terms  of  the  fact;  and  that  in  such  a  case  it  is  at  liberty  to 
resort  to  an  authentic  source  of  information  for  the  purpose  of 
removing  its  doubt  and  of  taking  judicial  notice.  Where,  for 
example,  a  general  order  is  material,  and  no  authentic  source  of 
information  happens  to  be  accessible,  the  court  is  not  required  to 
notice  what  it  actually  does  not  know  and  can  not  ascertain.  On 
the  other  hand,  where  a  special  order  of  a  post  command  is  mate- 
rial, and  some  adequate  source  of  information  is  available,  such 
order  may  be  judicially  noticed,  even  though  the  order  may  not 
have  been  published  in  printed  form  so  as  to  be  available  to  the 
command  at  large. 

In  all  these  cases  the  trial  judge  advocate  and  defense  counsel 
should  endeavor  to  provide,  ready  at  the  trial,  such  authentic 
sources  as  the  court  may  have  occasion  to  refer  to. 


233 


CHAPTER  XIL 

COURTS-MARTIAL—CONCLUDING    INCIDENTS    OF 
THE  TRIAL. 


Section  I:  Statements  and  arguments:  Page. 

290.  Scope  of  statement 235 

291.  Freedom  of  expression 235 

292.  Admissions 236 

293.  Arguments 236 

Section  II:  Findings: 

294.  Voting 236 

295.  Number  of  votes  necessary  to  conviction  and  sentence.  237 

296.  Reasonable  doubt 238 

297.  General  principles  controlling  findings 239 

298.  Guilty  of  a  lesser  included  offense 239 

299.  Guilty  with  exceptions  and  substitutions 239 

300.  Finding  of  guilty  of  lesser  included  offense — Substi- 

tutions of  the  general  or  other  special  article 240 

301.  Joint  charges 241 

302.  Reasons  for  findings 241 

303.  Findings  where  no  criminality  is  involved 241 

304.  Findings  under  charge  of  drunkenness 241 

305.  Recording  of  finding  or  sentence  by  reporter 242 

Section  III :  Previous  convictions : 

306.  Procedure  as  to  previous  convictions 242 

307.  Character  of  previous  convictions 243 

Section  IV:  Sentences: 

308.  Voting  on  sentences 244 

309.  Mandatory  and  discretionary  punishments 246 

310.  Sentences  for  officers 247 

310a.  Sentences  for  members  of  Army  Nurse  Corps,  warrant 

Officers,  Army  field  clerks,  and  field  clerks,  Quarter- 
master  Corps 248 

811.  Sentences  for  soldiers 248 

312.  Dismissal 249 

313.  Loss  of  rank  or  files 249 

314.  Suspension  from  rank 250 

315.  Suspension  from  command 250 

316.  Suspension  from  duty 250 

317.  Fine 250 

818.  Reprimand 251 

319.  Restriction  to  limits 251 

820.  Dishonorable  discharge 251 

821.  Suspension  of  dishonorable  discharge 251 


234 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^f  290 

lection  IV  :  Sentences— Continued.  Page. 

322.  Confinement  *it  hard  labor 251 

823.  Hard  labor  without  confinement 252 

324.  Forfeiture  of  pay  and  allowances 252 

325.  Courts  can  not  stop  pay  in  favor  of  Government  or  an 

individual 252 

326.  Forfeiture  of  deposits 253 

327.  Reduction  of  noncommissioned  officer : 253 

328.  Detention  of  pay  or  of  part  of  pay 253 

329.  When   reward   for  apprehending   deserter   not   to   be 

stopped 253 

330.  Sentences  of  general  prisoners 253 

331.  Reasons  for  sentence 254 

332.  Recommendations  to  clemency 254 

332a.  Announcement  of  sentence  or  acquittal  in  open  court-  254 


SECTION  I. 
STATEMENTS  AND  ARGUMENTS. 

290.  SCOPE  OF  STATEMENT. — After  the  introduction  of  evi- 
dence hns  been  completed  the  accused,  personally  or  by  coun- 
sel, and  whether  or  not  he  has  testified  as  a  witness,  may  make 
an  unsworn  verbal  or  written  statement  as  to  the  case.    If  the 
statement  is  in  writing  it  should  be  signed  by  the  accused,  or 
by  counsel  in  his  behalf,  and  appended  to  the  record.    The 
statement  may  consist  of  a  brief  summary  or  version  of  the 
evidence,  with  such  explanation  or  allegation  of  motive,  ex- 
cuse, matter  of  extenuation,  etc.,  as  the  party  may  desire  to 
offer,  or  it  may  embrace,  with  the  facts,  a  presentation  also  of 
the  law  of  the  case  and  an  argument  both  upon  the  facts  and 
the  law.     (Winthrop,  p.  450.)     Such  statement  is  not  testi- 
mony and,  therefore,  is  not  subject  to  cross-examination,  but 
as  a  personal  defense  or  argument,  however,  it  may  and  prop- 
erly should  be  taken  into  consideration  by  the  court.    (Digest, 
p.  506V,  ILL) 

291.  FREEDOM  or  EXPRESSION, — Eatire  freedom  of  expres- 
sion in  his  statement  to  the  court  is  allowable  to  an  accused, 
and  his  counsel,  within  the  bounds  of  courtesy  and  ordinary  pro- 
priety, especially  in  his  comments  upon  the  evidence.    So,  an 
accused  may  be  permitted  to  reflect  within  reasonable  limits 
npon  the  apparent   animus  of  his   accuser  or   prosecutor, 
though  a  superior  officer  or  of  high  rank.    But  an  attack  upon 


235 


^[    292  CHAPTER  XII. 

such  a  superior  of  a  personal  character  and  not  apposite  to 
the  facts  of  the  case  is  not  legitimate;  nor  is  language  of 
marked  disrespect  employed  toward  the  court.  Matter  of 
this  description  may  indeed  be  required  by  the  court  to  be 
omitted  by  the  accused  as  a  condition  to  his  continuing  his 
address  or  filing  it  with  the  record.  (Digest,  p.  506,  V,  H,  3.) 

292.  ADMISSIONS. — While  the  statement  proper  can  not,  as 
previously  stated,  be  regarded  as  evidence,  and  the  accused 
is  not  in  general  to  be  held  bound  by  the  argumentative  decla- 
rations it  contains,  yet  if  he,  in  a  statement  made  by  him  person- 
ally, not  by  counsel,  clearly  and  unequivocally  admits  in  his 
statement  certain  facts  material  to  the  prosecution,  such  may 
properly  be  viewed  by  the  court  and  reviewing  authority  in 
the  case.    Such  facts  must,  of  course,  not  be  inconsistent  with 
the  plea.     But  admissions  of  this  sort  can  scarcely  in  any 
event  constitute  a  sufficient  basis  for  a  conviction  unless  sup- 
ported by  material  testimony  on  the  trial. 

NOTE.— See  Chapter  IX,  paragraph  154,  as  to  procedure  where,  after 
a  plea  of  guilty,  the  accused  makes  a  statement  inconsistent  with  his 
plea. 

293.  ARGUMENTS. — After  the  accused  has  made  a  state- 
ment, if  any,  arguments  may  be  presented  to  the  court  by 
the  trial  judge  advocate,  the  accused,  and  his  counsel.     The 
trial  judge  advocate  has  the  right  to  make  the  opening  and 
closing  argument,  but  the  court,  in  its  discretion,  may  permit 
the  defense  to  answer  any  new  matter  brought  up  in  the  clos- 
ing argument  of  the  trial  judge  advocate. 

SECTION  II. 
FINDINGS. 

294.  VOTING. — After  the  statements  and  arguments,  if  any 
are  made,  have  been  concluded,  the  court  will  proceed  to  its 
judgment,  which  consists  of  the  findings  and  sentence.     Vot- 
ing by  members  of  a  general  or  special  court-martial,  on  the 
findings,  shall  be  by  secret  written  ballot,  and  the  junior  member 
of  the  court  shall  in  each  case  count  the  votes,  and  the  president 
shall  verify  the  count  and  announce  the  result  of  the  ballot  to 
the  members  of  the  court.     (A.  W.  31).     If  the  ballots  are  in 


236 


COURTS-MAETIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^f    295 

excess  of  or  less  than  the  number  of  members  of  the  court  present 
at  the  time  the  vote  is  taken,  the  result  will  not  be  announced, 
and  a  new. ballot  will  be  taken.  The  votes  of  the  members 
must  be  based  upon  and  governed  by  the  testimony  in  the 
case  considered  in  connection  with  the  pleadings,  The 
charges  and  specifications  will  be  voted  upon  in  the  same 
order  that  is  followed  in  arraigning  the  accused,  the  first 
specification  to  the  first  charge  being  first  voted  upon,  then 
the  second,  third,  and  thereafter  in  order,  followed  by  a  vote 
upon  the  charge  itself;  and  so  on  with  the  other  charges. 
Each  member  will  write  on  his  ballot,  without  signature,  as 
to  each  specification,  either  (1)  "guilty,"  or  (2)  "not  guilty," 
or  (3)  "  guilty,  with  exceptions  or  substitutions  "  (setting  them 
out  in  full  on  the  ballot) ;  and  as  to  each  charge  (1)  "guilty," 
(2)  "  not  guilty,"  or  (3)  "  Not  guilty,  but  guilty  of  violation 

of  the article  of  war,"  (setting  it  out).     If  the  requisite 

number  of  votes  of  "  guilty  "  without  qualification  is  not  re- 
ceived to  convict  the  accused  of  the  specification  or  charge,  as 
prescribed  in  paragraph  295,  infra,  the  accused  will  be  found 
acquitted  of  the  specification  or  charge;  unless  one  or  more  such 
exceptions  or  substitutions  have  been  so  proposed  on  the  ballots, 
in  which  case  the  president  shall  read  all  such  proposals  to  the 
members  of  the  court,  together  with  any  others  which  may 
then  be  proposed,  and  the  members  will  then  vote  (each  ballot 
to  be  written,  without  signature,  "  guilty,"  or  "  not  guilty  ") 
on  each  such  proposed  finding  with  exception  or  substitution, 
in  order,  beginning  with  the  one  which  the  president  considers 
the  severest,  until  all  have  been  so  voted  on,  or  one  has  received 
the  requisite  number  of  votes  prescribed  in  paragraph  295.  If 
none  of  such  proposed  exceptions  or  substitutions  is  adopted  by 
the  requisite  number  of  votes  prescribed,  the  accused  shall  be 
deemed  entirely  acquitted  of  that  specification  or  charge.  All 
ballots  will  be  destroyed  as  soon  as  the  result  is  announced, 
unless  some  member  of  the  court  desires  first  to  verify  the  count, 
when  they  will  be  destroyed  immediately  after  such  verification. 

NOTE. — For  refusal  to  vote  a  member  is  chargeable  under  A.  W.  96, 
see  Chapter  VII,  paragraph  90a. 

295.  Number  of  Votes  Necessary  to  Conviction  and  Sentence. — 
(a)  Convictions. — All  convictions,  whether  by  general  or  spe- 


237 


IF  296  CHAPTER  xii. 

cial  court-martial  may  be  determined  by  a  two-thirds  vote  of 
those  members  present  at  the  time  the  vote  is  taken  (see  par. 
294,  supra,  and  308,  infra,  and  notes  thereto),  except  that  no 
person  shall  by  general  court-martial  be  convicted  of  an 
offense  for  which  the  death  penalty  is  made  mandatory  by 
law  (i.  e.,  either  upon  the  specification  or  the  charge),  except 
by  the  concurrence  of  all  the  members  of  said  court-martial 
present  at  the  time  the  vote  is  taken.  Where  the  death  pen- 
alty is  not  mandatory  but  is  discretionary  a  conviction  may 
be  determined  by  a  two-thirds  vote,  but  all  of  the  members 
present  at  the  time  the  vote  is  taken  must  concur  in  the  death 
penalty  before  it  can  be  imposed.  (A.  W.  43.) 
(b)  Sentences: 

(1)  Death  sentence. — No  person  shall  by  general  court- 
martial  be  sentenced  to  suffer  death,  except  by  the  concur- 
rence of  all  the  members  of  said  court-inartial  present  at  the 
time  the  vote  is  taken,  and  for  an  offense  expressly  made 
punishable  by  death  by  the  articles  of  war.     (A.  W,  43.) 

(2)  Life  imprisonment — Confinement  for  more  than  10 
years. — No  person  shall  by  general  court-martial  be  sen- 
tenced to  life  imprisonment,  nor  to  confinement  for  more 
than  10  years,  except  by  the  concurrence  of  three-fourths 
of  all  of  the  members  present  at  the  time  the  vote  is  taken. 
(A.  W.  43.) 

(3)  All  other  sentences. — All  other  sentences,  whether 
by  general  or  special  court-martial,  may  be  determined  by 
a  two-thirds  vote  of  those  members  present  at  the  time  the 
vote  is  taken.     (A.  W.  43.) 

NOTE. — All  other  questions  arising  during  the  trial  will  be  de- 
termined by  a  majority  vote.  (A.  W.  43.) 

296.  KEASONABLE  DOUBT. — Where  issues  arise  during  the 
progress  of  a  trial,  as  for  instance  as  to  the  competency  of 
members  or  witnesses,  and  evidence  is  taken,  the  question  at 
issue  is  determined  by  preponderance  of  evidence;  but  in 
order  to  convict  of  the  charges  and  specifications  or  any  part 
of  them  the  court  must  be  satisfied  of  the  guilt  of  the  accused 
beyond  a  reasonable  doubt. 

NOTE, — For  description  of  reasonable  doubt,  see  Chapter  XI,  para- 
graph 288. 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^j"    297 

297.  GENERAL   PRINCIPLES   CONTROLLING   FINDINGS. — The 
finding  on  the  charge  should  be  supported  by  the  finding  on 
the  specification   (or  specifications),  and  the  two  findings 
should  be  consistent  with  each  other.    A  finding  of  guilty  on 
the  charge  would  be  quite  inconsistent  with  a  finding  of  not 
guilty  on  the  specification.    So  a  finding  of  guilty  on  a  well- 
pleaded  specification  apposite  to  the  charge,  not  followed  by 
a  finding  of  guilty  either  of  the  article  charged  or  of  some 
other  proper  article,  would  be  incongruous.    No  matter  how 
many  specifications  there  may  be,  it  requires  a  finding  of 
guilty  on  but  one  specification  (apposite  to  the  charge)  to 
support  a  similar  finding  upon  the  charge.     (Digest,  p.  536, 
XII,  A.  2.)     Evidence  can  not  be  taken  after  a  finding  has 
been  readied  (except  as  provided  in  par.  154 (e),  supra). 

298.  GUILTY  OF  A  LESSER  INCLUDED  OFFENSE, — If  the  evi- 
dence proves  the  commission  of  an  offense  which  is  included 
in  that  with  wliich  the  accused  is  charged  the  court  may  ex- 
cept words  of  the  specification,  and  if  necessary  substitute 
others  instead,  pronounce  the  innocence  and  guilt  of  the  ex- 
cepted  and  substituted  words,  respectively,  and  then  find  the 
accused  either  guilty  of  the  charge  or  not  guilty  of  the  charge, 
but  guilty  of  a  violation  of  another  proper  article  of  war  as 
the  finding  on  the  specification  may  require.     Of  this  form 
of  verdict  the  most  familiar  is  the  finding  of  guilty  of  absence 
without  leave  under  a  charge  of  desertion.    In  such  a  case  the 
court  should  find  as  follows  where  the  charges  are  in  the 
usual  form : 

Of  the  specification,  guilty  except  the  words  "  desert  "  and 
"  in  desertion  "  substituting  therefor  respectively  the  words 
"  absent  himself  without  leave  from  "  and  "  without  leave," 
of  the  exeepted  words  not  guilty,  of  the  substituted  words 
guilty. 

Of  the  charge,  not  guilty  but  guilty  of  violation  of  the 
sixty-first  article  of  war. 

NOTE. — For  a  discussion  of  the  incidental  power  of  appointing  and 
confirming  authorities  to  approve  and  confirm  a  finding  of  guilty  of  a 
lesser  included  offense  see  Chapter  XVI,  paragraphs  377  and  379. 

299.  GUILTY  WITH  EXCEPTIONS  AND  SUBSTITUTIONS. — It  is 
a  peculiarity  of  the  finding  at  military  law  that  a  court- 


239 


If    300  CHAPTER  XII. 

martial,  where  of  opinion  that  any  portion  of  the  allegations 
in  a  specification  is  not  proved,  is  authorized  to  find  the  ac- 
cused guilty  of  a  part  of  a  specification  only,  excepting  the 
remainder;  or,  in  finding  him  guilty  of  the  whole  (or  any 
part) ,  to  substitute  correct  words  or  allegations  in  the  place 
of  such  as  are  shown  by  the  evidence  to  be  incorrect.  And 
provided  the  exceptions  or  substitutions  leave  the  specifica- 
tion still  appropriate  to  the  charge  and  legally  sufficient 
thereunder,  the  court  may  then  properly  find  the  accused 
guilty  of  the  charge  in  the  usual  manner.  Familiar  instances 
of  the  exercise  of  the  authority  to  except  and  substitute  in  a 
finding  of  guilty  occur  in  cases  where,  in  the  specification, 
the  name  or  rank  of  the  accused  or  some  other  person  is 
erroneously  designated,  or  there  is  an  erroneous  averment  of 
time  or  place,  or  a  mistaken  date,  or  an  incorrect  statement 
as  to  amount,  quantity,  quality,  or  other  particular,  of  funds 
or  other  property.  But  the  authority  to  find  guilty  of  a  lesser 
included  offense,  or  otherwise  to  make  exceptions  and  substi- 
tutions in  the  findings,  does  not  justify  the  conviction  of  the 
accused  of  an  offense  entirely  separate  and  distinct  in  its  na- 
ture from  that  charged,  thus  "  selling  "  and  "  through  neglect 
losing ''  property  are  separate  offenses  though  each  is  a  viola- 
tion of  A.  \V .  84. 

300.  Finding  of  Guilty  of  Lesser  Included  Offense. — Substitu- 
tion of  the  General  Article  or  Other  Special  Article. — The  specifi- 
cation apprises  the  accused  of  the  allegations  against  him.  He  is 
therefore  put  on  trial  as  to  all  the  allegations  in  the  specification. 
If  but  a  part  of  such  allegations  be  proved  he  may  be  found  guilty 
of  such  part,  provided  it  constitutes  an  offense  at  military  law. 
Thus,  on  a  specification  alleging  desertion  for  a  certain  period, 
where  the  evidence  proves  an  absence  without  leave  for  all  or  a 
part  of  such  period,  but  does  not  prove  desertion  or  an  attempt  to 
desert,  the  court  may  find  the  accused  guilty  of  absence  without 
leave  for  such  period  or  part  thereof  as  may  be  proved.  Like- 
wise, where  a  specification  of  misbehavior  before  the  enemy 
under  the  seventy-fifth  article  alleges  that  the  accused  was  ab- 
sent without  authority  from  his  organization  or  post  of  duty  for 
a  certain  period  and  the  evidence  proves  that  he  was  so  absent 
but  does  not  prove  the  other  elements  necessary  to  constitute  the 


240 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL,  ^f    301 

misbehavior  denounced  in  the  seventy-fifth  article  of  war,  the 
accused  may  be  found  guilty  of  absence  without  leave  for  the 
period  charged  and  proved.  And  on  the  same  principle  man- 
daughter  or  assault  and  battery  may  be  found  on  trial  for  mur- 
der (Par.  377).  Indeed,  in  any  case  where  such  parts  of  the 
specification  as  are  proved  constitute  an  offense  denounced  in  a 
special  article  of  war,  or  a  disorder  or  neglect  to  the  prejudice 
of  good  order  and  military  discipline  as  denounced  in  the  general 
(ninety-sixth)  article  of  war  or  a  crime  or  offense  punishable 
under  that  article,  a  finding  of  guilt  may  be  made  under  the  ap- 
propriate article.  An  attempt  to  commit  a  crime,  since  it  is  an 
element  of  the  crime,  may  be  found  on  a  specification  alleging 
such  crime. 

NOTE  1. — "  The  prisoner  may  be  convicted  not  merely  of  the  offense 
with  which  he  is  charged,  but  of  any  lesser  offense  that  can  be  carved 
out  of  the  indictment."  (May's  Grim.  Law,  93.) 

NOTE  2. — Where  the  article  of  war  does  not  include  "  attempt  " 
in  its  express  terms,  the  attempt  should  be  found  as  a  violation  of  the 
general  article. 

301.  JOINT  CHARGES. — Where  joint  charges  are  tried,  if 
one  or  more  of  the  accused  persons  is  acquitted  and  one  or 
more  is  convicted,  the  findings  should  by  proper  exceptions 
eliminate  the  words  showing  that  the  acquitted  person  or 
persons  was  a  joint  participant  in  the  offense,  and  should 
expressly  acquit  those  persons  whom  it  finds  not  guilty. 

302.  REASONS  FOR  FINDINGS. — A  court-martial  may  spread 
upon  the  record  of  trial  a  brief  statement  of  reasons  upon 
which  its  findings  are  based.    In  many  cases  such  a  statement 
will  aid  the  reviewing  authority  in  determining  the  action 
to  be  taken  by  him. 

303.  FINDINGS  WHERE  No  CRIMINALITY  Is  INVOLVED. — A 
finding  of  "  guilty  without  criminality  "  is  not  consistent  and 
should  not  be  made.    If  the  accused  is  found  to  have  com- 
mitted the  act  and  done  the  things  alleged  in  the  specification, 
but  without  the  guilty  intent  or  knowledge  essential  to  con- 
stitute the  offense,  the  court  should,  as  to  the  specification, 
find  the  accused  "  not  guilty." 

304.  FINDINGS  UNDER  CHARGE  OF  DRUNKENNESS. — A  per- 
son "under  the  influence  of  intoxicating  liquor  "  or  "  intoxi- 

21358°— 20 16 


241 


If    305  CHAPTER  XII. 

cated  "  is  "  drunk."  Therefore,  under  the  eighty-fifth  article 
of  war,  in  charging  that  the  accused  was  found  "  drunk  "  the 
word  "  drunk  "  will  be  used.  So,  in  charging  other  offenses 
involving  drunkenness,  no  other  word  or  phrase  will  be  used 
as  a  substitute  for  "  drunk."  Under  such  charges  the  court 
should  not  in  its  findings  substitute  such  phrases  as  "  under 
the  influence  of  intoxicating  liquor  "  and  "  intoxicated  "  for 
"drunk." 

305.  RECORDING  OF  FINDING  OR  SENTENCE  BY  REPORTER. — A 
court-martial,  member  of  court,  or  trial  judge  advocate  can 
not,  of  course,  lawfully  communicate  to  a  reporter  or  clerk, 
by  allowing  him  to  record  the  same  or  otherwise,  the  finding 
or  sentence  of  the  court  unless  the  sentence  or  acquittal  has  been 
announced  in  open  court.    But  the  fact  that  the  finding  or  sen- 
tence or  both  may  have  been  made  known  to  a  reporter  or 
clerk  can  not  affect  the  legality  of  the  proceedings  or  sen- 
tence.    (Digest,  p.  558,  XIV,  E,  7,  g.) 

SECTION  III. 
PREVIOUS  CONVICTIONS. 

306.  Procedure   as   to   Previous   Convictions. — Courts-martial 
will,  after  a  finding  of  guilty,  be  opened  for  the  purpose  of  ascer- 
taining whether  evidence  of  previous  convictions  has  been  re- 
ferred to  the  court  by  the  appointing  authority,  and,  if  so,  of  re- 
ceiving it.    The  introduction  and  use  of  evidence  of  previous  con- 
victions in  the  case  of  officers,  warrant  officers,  members  of  the 
Army  Nurse  Corps,  Army  field  clerks,  and  field  clerks  Quarter- 
master Corps,  will  be  limited  to  that  pertaining  to  convictions  by 
court-martial  of  an  oifense  or  offenses  committed  by  the  accused 
during  his  status  as  such  officer,  warrant  officer,  member  of  the 
Army  Nurse  corps,  Army  field  clerk,  or  field  clerk  Quartermaster 
Corps,  and  within  three  years  next  preceding  the  commission  of 
any  of  the  offenses  of  which  he  stands  convicted  before  the  court. 
In  the  case  of  soldiers  it  will  be  limited  to  that  pertaining  to  con- 
victions by  courts-martial  of  an  offense  or  offenses  committed  by 
the  accused  during  the  current  enlistment  and  within  one  year 
next  preceding  the  commission  of  any  of  the  offenses  of  which  he 
stands  convicted  before  the  court.    These  convictions  may  be 


242 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL,  ^f    307 

proved  only  by  the  records  of  previous  trials  and  convictions  or 
by  duly  authenticated  copies  of  such  records,  or  by  duly  authenti- 
cated copies  of  orders  promulgating  such  trials  and  convictions. 
Copies  of  such  records  or  orders  promulgating  trials  and  convic- 
tions are  duly  authenticated  when  impressed  with  the  stamp  of 
the  bureau,  office,  or  headquarters  having  custody  of  the  original, 
or  when  certified  as  a  true  copy  by  an  officer  having  custody  of 
such  records. 

An  entry  of  a  fact  of  a  previous  conviction  in  the  service  record 
of  the  accused  is  prima  facie  evidence,  a  duly  authenticated  copy 
of  which  may  be  accepted ;  unless  the  accused  denies  the  correct- 
ness of  the  entry,  or  objects  to  it  as  not  fairly  representing  the 
nature  of  the  previous  conviction.  On  such  denial,  or  objection, 
the  court  may,  in  its  discretion,  suspend  proceedings  until  a  duly 
authenticated  copy  of  the  court-martial  order  or  trial  record  is 
obtained;  otherwise  it  will  not  consider  the  entry  in  the  service 
record  whose  correctness  is  denied,  or  whose  fairness  is  objected  to 
by  the  accused.  The  record  of  previous  convictions,  as  shown  by 
the  service  record,  is  duly  authenticated  when  certified  as  a  true 
copy  by  the  officer  having  custody  of  such  service  record. 

In  a  trial  by  general  court-martial,  when  the  proof  is  the  copy 
of  the  record  or  of  the  order  promulgating  the  sentence  furnished 
to  the  regimental  or  other  commander,  it  will  be  returned  to  him, 
and  a  certified  copy  will  be  attached  to  the  record  of  trial.  When 
the  proof  is  a  copy  of  the  entries  of  previous  convictions  in  the 
service  record,  such  copy  will  be  attached  to  the  record  of  trial. 
The  evidence  of  previous  convictions  referred  to  a  special  or  sum- 
mary court  will,  after  trial,  be  returned  to  the  appointing  author- 
ity and  will,  after  action  by  the  latter  on  the  case,  be  returned  to 
the  command  to  which  it  pertains. 

307.  CHARACTER  or  PREVIOUS  CONVICTIONS. — By  "  previous 
conviction  "  is  meant  a  previous  conviction  by  a  court-martial 
where  the  sentence  has  been  approved,  and  confirmed  if  con- 
firmation be  necessary,  and  ordered  executed  by  competent  author- 
ity, or  which  has  received  such  final  approval  or  confirmation 
(after  examination  by  the  Board  of  Review  and  the  Judge  Advo- 
cate General  in  cases  where  so  required  by  A.  W.  50y2)  as  may  be 
necessary  to  its  execution.  Such  previous  conviction  may  be  ad- 


243 


Tf    308  CHAPTER  XII. 

mitted  even  where  the  whole  sentence  was  remitted.  A  previous 
conviction  by  a  civil  or  naval  court,  an  acquittal,  or  an  ap- 
proved conviction  by  a  court-martial  that  has  been  set  aside 
as  illegal,  is  not  a  "previous  conviction"  as  the  phrase  is 
used  here.  Previous  convictions  are  not  limited  to  those  for 
offenses  similar  to  the  one  for  which  the  accused  is  on  trial. 
The  object  is  to  see  if  the  accused  is  an  old  offender  and 
therefore  less  entitled  to  leniency  than  if  on  trial  for  his  first 
offense.  This  information  might  not  be  fully  obtained  if 
evidence  of  previous  convictions  of  similar  offenses  only  were 
laid  before  the  court.  -The  consideration  of  previous  con- 
victions has  no  bearing  upon  the  question  of  guilt  of  the 
particular  charge  on  trial,  but  only  upon  the  amount  and 
kind  of  punishment  to  be  awarded.  They  are  not  considered 
until  after  the  findings  have  been  reached. 

SECTION  IV. 
SENTENCES. 

308.  VOTING  on  Sentences. — After  the  findings  have  been 
determined  upon  and  resulted  in  conviction  upon  the  charge, 
or  some  one  at  least  of  the  charges  when  there  are  several,  or 
in  a  conviction  of  a  lesser  offense  included  in  one  charge,  and 
evidence  of  previous  convictions,  if  any,  has  been  introduced, 
the  court  proceeds  to  adjudge  the  sentence.  In  voting,  the 
thirty-first  article  of  war  requires  that  the  voting  shall  be  by 
secret  written  ballot,  and  that  the  junior  member  of  the  court 
shall  in  each  case  count  the  votes,  which  count  shall  be  checked 
by  the  president,  who  will  forthwith  announce  the  result  of  the 
ballot  to  the  members  of  the  court.  The  balloting  will  be  (except 
as  in  this  paragraph  otherwise  directed)  in  the  same  manner  pre- 
scribed for  voting  upon  findings  in  paragraph  294,  supra.  Be- 
fore the  voting  begins,  any  member  desiring  to  propose  a  sen- 
tence will  write  it  on  a  slip  of  paper  without  signature  and 
hand  it  to  the  president.  The  president,  before  the  voting  be- 
gins, will  read  the  proposed  sentences  to  the  court  and  the 
members  will  vote  on  them  in  order,  beginning  with  the 
lightest,  until  a  sentence  has  been  agreed  upon  by  the  number 
of  members  required  by  the  forty-third  article  of  war. 


244 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^f   308 

A.  W.  43  requires : 

(a)  For  a  death  sentence,  the  concurrence  of  all  the  mem- 
bers of  the  court-martial  present  at  the  time  the  vote  is 
taken   (and  for  an  offense  expressly  made  punishable  by 
death  by  the  Articles  of  War) ; 

(b)  For  a  sentence  to  life  imprisonment  or  to  confine- 
ment for  more  than  10  years,  the  concurrence  of  three-fourths 
of  all  the  members  of  the  court-martial  present  at  the  time 
the  vote  is  taken; 

(c)  For  all  other  sentences,  whether  by  general  or  special 
court-martial,  the  concurrence  of  a  two-thirds  vote  of  those 
members  present  at  the  time  the  vote  is  taken. 

When  a  sentence  of  death  is  proposed  all  of  the  members 
present  at  the  time  the  vote  is  taken  must  agree  upon  the 
death  sentence  before  it  can  be  adopted,  regardless  of 
whether  the  death  penalty  is  mandatory  or  merely  discre- 
tionary in  the  case  on  trial.  Even  in  a  case  where  the  pun- 
ishment is  fixed,  as  for  instance,  under  the  eighty-second 
article,  where  the  punishment  for  lurking  or  acting  as  a 
spy  is  death,  and  under  the  ninety-fifth  article,  where  the 
punishment  is  dismissal,  the  members  must  by  vote  impose 
this  punishment.  All  the  members  of  the  court  present  at 
the  time  the  vote  is  taken — those,  if  any,  who  voted  for  an 
acquittal  equally  with  those  who  voted  for  conviction — will 
vote  for  some  sentence. 

A  proposed  sentence  which  does  not  receive  the  number  of 
ballots  requisite  for  its  adoption  is  rejected,  and  a  ballot  will 
then  be  taken  upon  the  next  heavier  proposed  sentence,  and  so 
on  until  a  sentence  has  been  adopted  or  until  each  proposed 
sentence  has  been  balloted  upon.  If,  after  all  the  proposed  sen- 
tences suggested  in  the  first  instance  have  been  voted  upon,  none 
has  received  the  number  of  ballots  requisite  for  its  adoption, 
then  each  member  will  make  a  new  proposal  of  a  sentence,  in 
the  same  manner  as  in  the  first  instance,  and  these  new  pro- 
posals will  be  balloted  upon  in  the  same  order  and  manner  as 
before.  This  procedure  will  be  continued  until  some  sentence 
is  legally  adopted.  The  written  ballot  on  each  proposed  sen- 
tence will  be  without  signature  and  may  be  expressed  "  For  " 
or  "Against."  The  ballots  will  be  destroyed  as  soon  as  the 


245 


IT    309  CHAPTER  XII. 

result  of  the  ballot  is  announced,  unless  some  member  of  the 
court  desires  first  to  verify  the  count,  when  they  will  be  de- 
stroyed immediately  after  such  verification. 

NOTE  1. — In  determining  whether  a  two-thirds  or  three-fourths 
vote,  as  the  case  may  require,  has  been  cast  in  favor  of  any  sentence, 
wherever  the  mathematical  two-thirds  or  three-fourths,  as  the  case 
may  be,  of  the  number  of  members  present,  includes  a  fraction,  one 
vote  will  be  required  to  represent  such  fraction.  Thus,  for  example, 
since  two-thirds  of  eight  is  five  and  one-third,  in  case  eight  members 
are  present,  five  votes  not  constituting  the  full  statutory  two-thirds 
required,  the  ballots  of  six  members  will  be  required  to  agree  upon  a 
sentence.  Similarly,  in  a  court  where  seven  members  are  present,  a 
sentence  requiring  a  three-fourths  vote  will  require  the  votes  of  six 
members. 

NOTE  2. — If  a  question  arises  as  to  which  of  two  or  more  proposed 
sentences  is  the  lightest,  the  president  will  determine  the  question 
(with  the  benefit  of  the  advice  of  the  law  member  of  the  court,  if 
present)  and  will  direct  the  order  in  which  the  proposed  sentences 
shall  be  balloted  upon. 

309.  MANDATORY  AND  DISCRETIONARY  PUNISHMENTS. — 
Punishment,  under  the  Articles  of  War,  is  either  manda- 
tory— that  is,  a  certain  punishment  is  prescribed  by  the  terms 
of  the  article — or  is  discretionary — that  is,  it  is  left  to  the 
discretion  of  the  court-martial.  If  the  punishment  is  pre- 
scribed in  the  article  violated,  any  other  punishment  than 
that  prescribed  is  illegal.  For  instance,  the  punishment 
imposed  by  a  court  for  a  violation  of  the  ninety-fifth  article 
of  war  must  be  dismissal ;  it  can  not  be  less  and  it  can  not 
be  more,  though  a  conviction  under  other  articles  at  the  same 
trial  might  authorize  the  inclusion  of  other  forms  of  pun- 
ishment in  the  sentence.  Before  pronouncing  sentence  the 
court  should,  therefore,  examine  the  article  violated  to  see 
what  punishment  may  be  legally  awarded.  As  to  discre- 
tionary punishments,  the  President,  by  virtue  of  an  act  of 
Congress,  has  by  Executive  order  prescribed  maximum  lim- 
its of  punishment  for  certain  offenses.  The  latest  order  is 
found  in  Chapter  XIII,  paragraph  349.  If  the  punishment 
is  discretionary  the  court,  before  proceeding  to  award  a 
punishment,  will  ascertain  whether  a  limit  is  fixed  in  the 
order,  and  if  no  limit  is  fixed  the  court  may  impose  any 
punishment  that  is  sanctioned  by  the  custom  of  the  service, 
except  that,  in  time  of  peace,  the  period  of  confinement  in  a 

246 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^f    310 

penitentiary  must  in  no  case  exceed  the  maximum  period  pre- 
scribed by  the  law  which,  under  A.  W.  42,  permits  confinement 
in  a  penitentiary,  unless,  in  addition  to  the  offense  so  punishable 
under  such  law,  the  accused  shall  have  been  convicted  at  the 
same  time  of  one  or  more  other  offenses.  (A.  W.  45.) 

NOTE  1. — See  mandatory  and  discretionary  punishment,  Chapter  IV, 
Section  II,  paragraph  40. 

NOTE  2. — If  a  general  court-martial,  after  finding  an  accused  guilty 
of  an  offense  for  which  a  mandatory  punishment  such  as  death,  dis- 
missal, or  dishonorable  discharge  is  prescribed  by  the  Articles  of  War, 
shall  find  upon  a  ballot  being  taken  upon  the  question  of  imposition 
of  such  mandatory  sentence  that  the  number  of  votes  required  by 
A.  W.  43  for  the  imposition  of  such  sentence  have  not  been  cast  in  its 
favor,  then  a  second  ballot  shall  be  taken  upon  the  same  question.  If 
upon  such  second  ballot  the  requisite  number  of  votes  for  imposition 
of  such  sentence  is  still  lacking,  the  court  will  reconsider  its  findings 
in  the  case,  and  may  revoke  its  former  findings  and  find  the  accused 
not  guilty,  or  "guilty  of  a  lesser  included  offense. 

NOTE  3. — The  fact  that  but  one  or  two  punishments  are  mentioned 
as  the  maximum  for  a  specified  offense  in  the  maximum  punishment 
order  does  not  preclude  awarding  a  lesser  punishment  of  a  different 
kind.  The  maximum  punishment  order  is  not  to  be  treated  as  a  state- 
ment of  the  punishments  to  be  awarded  for  specified  offenses,  but  only 
as  a  limitation  upon  the  extreme  penalty. 

310.  SENTENCES  FOR  OFFICERS. — For  officers  the  legal  sen- 
tences by  court-martial,  depending  on  the  nature  of  the 
offense  and  the  jurisdiction  and  punishing  power  of  the  court, 
include  death;  dismissal  with  confinement  at  hard  labor; 
dismissal;  loss  of  rank  or  files;  suspension  from  rank,  com- 
mand, or  duty,  with  or  without  loss  or  detention  of  pay  or 
part  of  pay;  fine;  forfeiture  of  pay  or  part  of  pay;  detention 
of  pay  or  part  of  pay;  restriction  to  limits;  reprimand;  and 
admonition;  but  if  tried  by  special  court-martial  the  limita- 
tions upon  the  punishing  power  of  the  court  set  out  in  A.  W.  13 
will  be  observed.  (A.  W.  12,  13.) 

NOTE. — Immediately  upon  the  promulgation  of  any  sentence  of  court- 
martial  in  the  case  of  a  commissioned  officer  involving  suspension  from 
rank  and  command,  confinement,  reduction  in  lineal  rank,  or  any  other 
material  change  in  the  officer's  status,  the  commander  who  has  author- 
ity to  approve  such  sentence  and  carry  it  into  execution  will  advise 
The  Adjutant  General  of  the  Army,  by  telegraph,  of  the  sentence  im- 
posed as  approved  or  mitigated  and  the  date  of  promulgation  thereof. 
(G.  O.  No.  6,  War  Dept.,  1910.) 


247 


*H    311  CHAPTER  XII. 

310a.  Sentences  for  Members  of  Army  Nurse  Corps,  Warrant 
Officers,  Army  Field  Clerks,  and  Field  Clerks  Quartermaster 
Corps. — Members  of  the  Army  Nurse  Corps  have  relative  rank 
(act  of  June  4,  1920,  41  Stat.  767-768),  and  are  officers  of  the 
Army,  although  not  commissioned  officers.  Warrant  officers, 
Army  field  clerks,  and  field  clerks  Quartermaster  Corps  are  like- 
wise officers,  although  not  commissioned  officers.  Therefore  the 
punishments  prescribed  in  paragraph  310,  supra,  as  appropriate 
for  commissioned  officers  are  those  appropriate  for  these  classes 
of  persons  subject  to  military  law.  Being  officers  of  the  Army 
and  no  part  of  the  enlisted  personnel,  they  can  not  be  reduced 
to  the  ranks,  nor  to  the  grade  or  status  of  a  noncommissioned 
officer.  A  dismissal  from  the  service,  however,  does  not  require 
confirmation  under  A.  W.  48. 

311.  SENTENCES  FOR  SOLDIERS. — For  soldiers,  the  legal  sen- 
tences, depending  on  the  nature  of  the  offense  and  the  juris- 
diction of  the  court,  include  death ;  dishonorable  discharge ; 
confinement  at  hard  labor;  hard  labor  without  confinement, 
with  or  without  restrictions  to  limits;  restrictions  to  limits  of 
command,  post,  camp,  or  reservation;  forfeiture  of  pay,  or  of 
part  of  pay;  detention  of  pay,  or  of  part  of  pay;  and  repri- 
mand ;  for  enlisted  men  of  the  sixth  or  of  any  higher  grade,  re- 
duction to  the  seventh  grade;  for  specialists;  loss  of  specialist 
rating,  with  or  without  reduction  to  the  seventh  grade;  and 
for  those  holding  a  certificate  of  eligibility  to  promotion, 
deprivation  of  all  rights  and  privileges  arising  from 
such  certificate.  That  portion  of  pay  which  is  required  to 
be  allotted  to  dependent  relatives  of  class  A,  under  the 
provisions  of  Article  II  of  the  War  Risk  Insurance  Act 
of  October  6,  1917,  as  amended  by  the  act  of  December  24, 
1919  (41  Stat.  372),  is  not  subject  to  be  detained  or  for- 
feited by  sentence  of  court-martial.  Similarly  the  Comp- 
troller of  the  Treasury  has  held  (a)  that  portion  of  pay 
voluntarily  allotted  for  the  support  of  dependent  rela- 
tives of  class  B  under  said  War  Risk  Insurance  Act;  (5) 


248 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^f    312 

that  portion  of  pay  allotted  for  the  payment  of  insurance 
premiums  under  said  act;  and  (c)  that  portion  allotted  for 
the  purchase  of  liberty  loan  bonds  are  not  disturbed  or 
affected  by  a  sentence  of  court-martial  imposing  a  forfeiture 
of  pay  (24  Comp.  Dec.  621),  and  such  allotments  will  be 
excluded  from  the  effect  of  any  sentence  of  detention  or  for- 
feiture of  pay  or  part  of  pay.  A  sentence  imposing  detention 
or  forfeiture  of  a  part  of  pay  means  the  detention  or  forfei- 
ture of  the  specified  part  of  that  portion  of  the  pay  which 
is  not  so  allotted. 

NOTE  1. — Confinement  without  hard  labor  should  never  be  imposed. 

NOTE  2.— For  forms  of  sentence  see  Appendix  13. 

NOTE  3. — For  limitations  on  punishing  powers  of  special  and  sum- 
mary courts-martial,  see  A.  W.  13  and  14,  and  paragraphs  42  and  44, 
supra,  and  Appendix  21. 

NOTE  4. — For  War  Department  policy  respecting  punishments,  see 
infra,  paragraphs  340-345. 

NOTE  5. — As  to  punishments  generally,  see  infra,  Chapter  XIII, 
paragraphs  333-349. 

312.  DISMISSAL. — Under   the    ninety-fifth    article    of   war 
which  prescribes  the  mandatory  sentence  of  dismissal  upon 
conviction  "  of  conduct  unbecoming  an  officer  and  a  gentleman," 
no    punishment    in    addition    to    dismissal    is    authorized. 
Therefore  no  punishment  in  addition  to  dismissal  can  legally 
be  imposed  upon  conviction  of  an  offense  under  the  ninety- 
fifty  article  of  war  alone. 

NOTE. — For  statement  by  whom  a  sentence  of  dismissal  or  dishon- 
orable discharge  imposed  by  National  Guard  courts-martial,  not  in  the 
service  of  the  United  States,  must  be  approved,  see  section  107,  act  of 
June  3,  1916,  39  Stat,  166 ;  Appendix  2,  infra. 

313.  Loss  OF  RANK  or  Files. — Loss  of  rank  or  files  is  ac- 
complished by  a  sentence  directing  that  an  accused  be  placed 
at  the  foot  of  the  list  of  officers  of  his  grade  on  the  promotion 
list  of  the  Army,  or  of  his  department,  branch,  or  service,  if  he 
belongs  to  a  department,  branch,  or  service,  not  carried  on  the 
general  promotion  list  of  the  Army,  or  that  he  remain  at  the 
foot  of  such  list  for  his  grade  until  he  shall  have  lost  a  cer- 
tain number  of  files,  or  for  a  certain  length  of  time,  or  that 
he  lose  a  certain  number  of  files,  or  that  his  name  shall  appear 
in  the  lineal  list  of  officers  of  his  grade  on  the  general  promo- 


249 


f  314  CHAPTER  xn. 

tion  list  of  the  Army,  or  on  the  promotion  list  of  his  department, 
branch,  or  service,  as  the  case  may  be,  below  that  of  a  certain 
officer  named. 

314.  SUSPENSION  FROM  RANK. — Suspension  from  rank  in- 
cludes suspension  from  command.     It  deprives  an  officer  of 
the  right  to  promotion  to  a  vacancy  in  a  higher  grade  occur- 
ring pending  the  term  of  suspension  and  which  he  would 
have  been  entitled  to  receive  by  virtue  of  seniority  had  he 
not  been  suspended.     It  does  not,  however,  deprive  the  officer 
of  the  right  to  rise  in  files  in  his  grade.     Suspension  from 
rank  also  makes  an  officer  ineligible  to  sit  upon  a  court- 
martial,  court  of  inquiry,  or  military  board,  and  deprives 
him  of  privileges  that  depend  on  rank,  such  as  the  selection 
of  quarters. 

315.  SUSPENSION     FROM     COMMAND. — This     punishment 
merely  deprives  the  officer  of  authority  to  exercise  his  proper 
military  command,  and  consequently  of  his  right  to  give 
orders  to  or  exact  obedience  from  his  juniors  or  perform  any 
other  duties  that  go  with  the  exercise  of  command.     It  does 
not  affect  his  right  of  promotion  or  any  military  rights  or 
privileges  other  than  those  attaching  to  command.    It  is 
therefore  not  an  appropriate  punishment  for  a  staff  officer. 

316.  SUSPENSION  FROM  DUTY. — Suspension  from  duty  is 
practically  equivalent  to  a  sentence  of  suspension  from  com- 
mand.   It  is  appropriate  in  the  case  of  an  officer  holding  a 
position  involving  the  performance  of  administrative  duty, 
as  distinguished  from  actual  military  command,  as  in  the 
case  of  officers  of  the  staff. 

317.  FINE. — A  fine  is  distinguished  from  a  forfeiture  in 
that  it  is  a  punishment  which  imposes  a  pecuniary  liability 
in  general,  not  necessarily  affecting  pay.     It  is  especially 
recognized  as  a  form  of  punishment  in  the  ninety- fourth 
article  of  war.     It  is  usually  accompanied  in  the  sentence 
by  a  provision,  in  order  to  enforce  collection,  that  the  person 
fined  shall  be  imprisoned  until  the  fine  is  paid  or  until  a 
fixed  portion  of  time  considered  as  an  equivalent  punish- 
ment has  expired.    Fines  as  well  as  forfeitures  accrue  to  the 
United  States  and  can  not  be  imposed  or  collected  for  the 
benefit  of  any  individual. 


250 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^f    318 

318.  REPRIMAND. — This   sentence   is  usually   awarded  to 
officers  for  minor  offenses  where  a  mild  penalty  is  to  be  in- 
flicted.    It  may  be  awarded  to  any  other  person  subject  to 
military    law    under    appropriate    circumstances   where    other 
penalties  are  not  necessary.    A  summary  court-martial  may  im- 
pose this  punishment  where  it  is  believed  it  will  be  more  effec- 
tive than  a  forfeiture  or  other  punishment.    The  proper  au- 
thority to  administer  the  reprimand  is  the  reviewing  au- 
thority, and  he  may  administer  it  orally  or  in  writing,  vary- 
ing it  in  severity  or  mildness  according  to  his  views  in  the 
case. 

319.  Restriction  TO  LOUTS. — This  form  of  punishment  is 
rather  a  deprivation  of  privileges  than  confinement.    It  will 
usually  be  so  qualified  as  to  enable  the  person  upon  whom  it  is 
imposed  to  perform  his  military  duties. 

320.  DISHONORABJLE     DISCHARGE. — A     dishonorable     dis- 
charge can  be  imposed  only  pursuant  to  a  sentence  of  a  gen- 
eral court-martial.     (A.  W.  108.)     The  discharge  should  be 
dated  as  of  the  day  on  which  the  order  promulgating  such 
approval  is  received  at  the  post  where  the  soldier  is  held. 
A  sentence  adjudging  a  dishonorable  discharge  to  take  effect 
at  such  period  during  a  term  of  confinement  as  may  be  desig- 
nated by  the  reviewing  authority  is  illegal. 

321.  SUSPENSION  OF  DISHONORABLE  DISCHARGE. — Members 
of  a  court-martial  may  properly  recommend,  in  a  commu- 
nication made  separately  but  forwarded  to  the  reviewing 
authority  with  the  record,  that  sentence  of  dishonorable  dis- 
charge be  suspended.     (See  par.  332.) 

322.  CONFINEMENT  AT  HARD  LABOR. — In  the  case  of  officers 
this  punishment  is  imposed  only  in  connection  with  a  sen- 
tence of  dismissal.     Where  "  hard  labor "  is  intended,  it 
should  be  stated  in  the  sentence,  but  the  omission  of  these 
words  will  not  prevent  such   punishment  being   required 
where  it  is  authorized  in  the  maximum-punishment  order. 
(See  A.  W.  37.) 

NOTE. — Chapter  XVI,  Section  I,  paragraphs  396-398,  state  the  rules 
as  to  whether  a  post,  the  United  States  Disciplinary  Barracks  or  one 
of  its  branches,  or  a  penitentiary  shall  be  designated  as  the  place  of 
confinement. 


251 


Tf    323  CHAPTER  XII. 

323.  HARD  LABOR  WITHOUT  CONFINEMENT. — This  punish- 
ment is  regulated  by  the  provisions  of  the  Executive  order 
fixing  the  maximum  limits  of  punishment,  Chapter  XIII, 
Section  VI,  paragraph  349. 

It  is  the  policy  of  the  War  Department  to  encourage  the  use 
of  this  punishment,  wherever  practicable,  in  lieu  of  confine- 
ment at  the  post  or  in  a  guardhouse. 

324.  FORFEITURE    OF    PAY   AND    ALLOWANCES. — Pay    and 
allowances  can  not  be  forfeited  in  a  sentence  by  implication. 
If  the  court  intends  to  forfeit  pay  or  pay  and  allowances, 
the  penalty  of  forfeiture  will  be  adjudged  in  express  terms 
in  the  sentence.    No  other  punishment  imposable  by  court- 
martial — not  even  a  sentence  of  death,  dismissal,  suspension, 
dishonorable  discharge,  or  imprisonment — involves  of  itself 
a  forfeiture  or  deprivation  of  any  part  of  the  pay  or  allow- 
ances due  to  the  party  at  the  time  of  the  approval  or  taking 
effect  of  the  sentence.     It  is  not  customary  to  provide  in 
sentences  for  a  forfeiture  of  allowances  unless  the  sentence 
also  imposes  forfeiture  of  pay.    A  sentence  of  forfeiture  of 
pay,  without  mention  of  allowances,  does  not  forfeit  allowances, 
and  a  sentence  of  forfeiture  of  a  certain  number  of  days' 
pay,  or  two-thirds  of  a  soldier's  pay  for  a  certain  period, 
does   not   forfeit   extra -duty   pay.     (Digest,   p.   544,   XII, 
B,  3,  e  (1) ;  Bui.  18,  War  Dept.,  1915,  pp.  8,  9.) 

325.  COURTS  CAN  NOT  STOP  PAY  IN  FAVOR  OF  GOVERNMENT 
OR  AN  INDIVIDUAL. — A  court-martial  can  direct  a  forfeiture 
only  in  favor  of  the  United  States,  and  can  not  assign  the 
pay  of  a  soldier  to  -any  other  person ;  nor  can  a  soldier  be  re- 
quired to  receipt  for  money  paid  without  his  consent.    A  sen- 
tence can  not  appropriate  or  stop  pay  for  the  reimburse- 
ment or  benefit  of  the  Government  or  a  Government  agency, 
such  as  a  company  fund,  post  fund,  hospital  fund,  nor  of  an 
individual,  civil  or  military,  however  justly  the  same  may 
be  due  him,  either  for  money  borrowed,  stolen,  or  embezzled 
by  the  accused  or  to  satisfy  any  other  pecuniary  liability 
of  the  accused,  whether  in  the  nature  of  debt  or  damages. 
The  "  stoppage  "  of  pay  to  reimburse  the  Government  or  a 
Government  agency  on  account  of  losses  for  which  officers 
and  enlisted  men  are  responsible  is  purely  an  administra- 


252 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^f   326 

tive  matter  with  which  courts-martial  have  nothing  to  do. 
Sentences  providing  that  a  soldier  shall  be  dishonorably  dis- 
charged, forfeiting  all  pay  and  allowances  due  or  to  become 
due,  "  except  such  amounts  as  may  be  due  the  post  exchange, 

Fort  ,   and   the   company   fund,   Company   , 

Infantry,"  in  no  way  hasten  or  facilitate  the  settle- 
ment of  the  debts  due  the  exchange  or  company  fund.  Such 
matters  in  a  sentence  are  mere  surplusage. 

326.  FORFEITURE  OF  DEPOSITS. — Deposits  of  soldiers  and 
interest  thereon  are  forfeited  by  desertion,  but  the  forfeiture 
can  not  be  imposed  by  sentence  of  a  court-martial.    They  are 
exempt  from  liability  to  meet  a  sentence  of  a  court-martial 
imposing  forfeiture  of  pay  or  allowances.    A  sentence  that 
a  soldier  shall  deposit  a  certain  part  of  his  pay  is  illegal. 
(Digest,  p.  547,  XII,  B,  4,  c.) 

327.  REDUCTION     OF     NONCOMMISSIONED     OFFICER. — This 
punishment  is  regulated  by  the  provisions  of  the  Executive 
order  fixing  maximum  limits  of  punishment,  Chapter  XIII, 
Section  VI,  paragraph  349,  and  by  General  Orders  No.  71,  War 
Department,  December  1,  1920  (Appendix  21). 

328.  DETENTION  OF  PAY  or  of  Part  of  Pay. — This  punish- 
ment was  revived  by  the  Executive  order  of  September  5, 
1914,  fixing  the  maximum  limits  of  punishment,  and  is  recog- 
nized now  by  statute  (A.  W.  14),  and  is  regulated  by  A.  W. 
14  and  the  provisions  of  the  Executive  order  contained  in 
Chapter  XIII,  Section  VI,  paragraph  349,  infra. 

It  is  the  policy  of  the  War  Department  to  encourage  the  use 
of  this  punishment,  where  applicable,  instead  of  forfeiture  of 
pay. 

329.  WHEN  REWARD  FOR  APPREHENDING  DESERTER  NOT  TO 
BE  STOPPED. — If  a  soldier  be  brought  to  trial  under  a  charge 
of  desertion  and  acquitted,  or  convicted  of  absence  without 
leave  only,  any  amount  paid  as  a  reward  for  his  arrest  will 
not  be  stopped  against  his  pay,  and  a  sentence  providing  for 
such  a  stoppage  is  not  authorized. 

330.  SENTENCES  OF  GENERAL  PRISONERS. — Courts-martial 
in  imposing  sentences  upon  general  prisoners  are  restricted 
to  imposing  additional  confinement  at  hard  labor  to  be 
served  upon  the  completion  or  termination  of  their  existing 


253 


f    331  CHAPTER  XII. 

sentences,  and  will  not  interfere  with  the  manner  of  execut- 
ing such  sentences  by  prescribing  loss  of  good-conduct  time, 
solitary  confinement,  or  confinement  on  bread-and-water 
diet,  leaving  all  such  punishments  to  be  imposed  by  the  com- 
manding officer  as  the  ordinary  means  of  enforcing  dis- 
cipline. 

331.  REASONS  FOR  SENTENCE. — A  court-martial  may  spread 
upon  the  record  of  trial  a  brief  statement  of  reasons  upon 
which  its  sentence  is  based.     In  many  cases  such  a  statement 
will  aid  the  reviewing  authority  in  determining  the  action 
to  be  taken  by  him. 

332.  RECOMMENDATIONS  TO    CLEMENCY. — When   a    court- 
martial,  or  any  member  thereof,  desires  to  submit  a  recom- 
mendation to   clemency,  including   a   recommendation   for 
the  suspension  of  the  whole  or  of  any  part  of  the  sentence 
imposed  by  the  court,  such  recommendation  will  be  signed  by 
each  member  of  the  court  desiring  to  participate  therein. 
The  communication  carrying  the  recommendation  will  in- 
clude a  statement  in  succinct  form  of  the  reasons  upon  which 
the  recommendation  is  based,  and  of  the  specific  amount  and 
character  of  clemency  recommended,  and  will  be  appended  to 
the  record  of  trial.     (See  par.  357  (d).) 

NOTE. — It  is  extremely  annoying  to  a  reviewing  authority  to  re- 
ceive a  vague,  indefinite  recommendation  to  clemency.  Both  he  and 
his  staff  judge  advocate,  in  advising  him,  desire,  and  should  have, 
the  benefit  of  the  specific  opinion  and  recommendations  of  the  mem- 
bers of  the  court  recommending  clemency  as  to  the  amount  and 
character  of  the  clemency  which  should  be  extended. 

332a.  Announcement  of  Sentence  or  Acquittal  in  Open 
Court. — Whenever  the  court  has  acquitted  the  accused  upon  all 
specifications  and  charges,  the  court  shall  at  once  announce  such 
result  in  open  court.  (A.  W.  29.) 

Whenever  a  general  or  special  court-martial  has  sentenced  the 
accused,  the  court  shall  at  once  announce  the  findings  and 
sentence  in  open  court,  unless,  in  the  court's  opinion,  for  reasons 
that  will  he  stated  in  the  record,  the  findings  and  sentence 
should  not  he  made  puhlic  at  that  time. 

Immediately  upon  the  announcement  of  the  sentence  or  ac- 
quittal (or  in  case  the  court  directs,  as  ahove,  that  the  sentence 
be  not  announced  in  open  court,  immediately  thereupon)  the 


254 


COURTS-MARTIAL — CONCLUDING  INCIDENTS  OF  TRIAL.^[332a 

trial  judge  advocate  will  notify  the  commanding  officer  in  writ- 
ing, direct,  whereupon,  if  the  accused  has  been  acquitted,  or  if 
he  has  been  convicted  and  the  sentence  does  not  include  con- 
finement, the  commanding  officer  will  at  once,  if  the  accused  is 
in  arrest  or  confinement,  release  him  from  such  arrest  or  con- 
finement, unless  he  is  awaiting  trial  or  the  action  of  the  review- 
ing or  confirming  authority  upon  conviction  under  other  charges, 
on  account  of  which  the  commanding  officer  deems  it  necessary 
to  continue  him  in  such  arrest  or  confinement.  No  person  sub- 
ject to  military  law  convicted  by  a  general  or  special  court- 
martial  shall  be  ordered  to  duty  outside  of  the  jurisdiction  of  the 
reviewing  authority  until  the  case  has  been  finally  disposed  of, 
except  by  the  authority  of  the  Secretary  of  War. 


255 


CHAPTER  XIII. 
COURTS-MARTIAL—PUNISHMENTS. 


Section  I :  Disciplinary  power  of  commanding  officer :  Pa?e. 

333.  Authority  for 256 

834.  Record  of  punishment 259 

335.  Appeals    259 

336.  Not  limited  to  soldiers 259 

336a.  War    Department    policy — Disciplinary    punishment 

preferred  to  court-martial 260 

336b.  As  to  officers  in  time  of  war  or  emergency 260 

336c.  Procedure    261 

336d.  In  case  accused  demands  trial 261 

Section  II :  Confinement  in  a  penitentiary : 

337.  When  authorized 261 

338.  Classes  of  sentences  to  be  executed  in  a  penitentiary.  262 

339.  Authority  for  penitentiary  sentence  to  be  cited 264 

Section  III :  War  Department  policyl  regarding  punishments : 

340.  Desertion 264 

341.  Segregation  of  prisoners 267 

342.  Adaptation  of  punishments 267 

342a.    Same  subject — Penitentiary  confinement 268 

343.  Relative  severity  of  punishments 269 

343a.  Limits  of  punishments  upon  rehearing 269 

Section  IV:  Prohibited  punishments: 

344.  By    statute 273 

345.  By  custom  and  regulations 273 

Section  V:  Death — Cowardice — Fraud: 

346.  Death  penalty 273 

347.  Cowardice — Fraud — Accessory    penalty 274 

Section  VI :  Maximum  limits : 

348.  By  whom  prescribed — When  applicable 275 

349.  Executive  order 277 


SECTION  I. 
DISCIPLINARY    POWER    OF    COMMANDING    OFFICER. 

333.  AUTHORITY  FOR. — While  courts-martial  are  the  judi- 
cial machinery  provided  by  law  for  the  trial  of  military 
offenses,  the  law  also  recognizes  that  the  legal  power  of  com- 

256 


COURTS-MARTIAL — PUNISHMENT.  ^f    333 

mand,  when  wisely  and  justly  exercised  to  that  end,  is  a 
powerful  agency  for  the  maintenance  of  discipline.  Courts- 
martial  and  the  disciplinary  powers  of  commanding  officers 
have  their  respective  fields  in  which  they  most  effectually 
function.  The  tendency,  however,  is  to  resort  unnecessarily 
to  courts-martial.  To  invoke  court-martial  jurisdiction 
rather  than  to  exercise  this  power  of  command  in  matters 
to  which  it  is  peculiarly  applicable  and  effective,  is  to  choose 
the  wrong  instrument,  disturb  unnecessarily  military  func- 
tions, injure  rather  than  maintain  discipline,  and  fail  to 
exercise  an  authority  the  use  of  which  develops  and  increases 
the  capacity  for  command. 

Legal  sanction  is  now  given  to  the  exercise  of  such  discipli- 
nary power  by  the  following  article  of  war : 

"ART.  104.  Under  such  regulations  as  the  President  may 
prescribe,  the  commanding  officer  of  any  detachment,  com- 
pany, or  higher  command  may,  for  minor  offenses,  impose 
disciplinary  punishments  upon  persons  of  his  command 
without  the  intervention  of  a  court-martial,  unless  the  ac- 
cused demands  trial  by  court-martial." 

The  disciplinary  punishments  authorized  by  this  article 
may  include  admonition,  reprimand,  withholding  of  privi- 
leges for  not  exceeding  one  week,  extra  fatigue  for  not  exceed- 
ing one  week,  and  restriction  to  certain  specified  limits  for 
not  exceeding  one  week,  and  hard  labor  without  confinement 
for  not  exceeding  one  week,  but  shall  not  include  forfeiture  of 
pay  or  confinement  under  guard ;  except  that  in  time  of  war 
or  grave  public  emergency  a  commanding  officer  of  the  grade 
of  brigadier  general  or  of  higher  grade  may,  under  the  provi- 
sions of  this  article,  also  impose  upon  an  officer  of  his  command 
below  the  grade  of  major  a  forfeiture  of  not  more  than  one- 
half  of  such  officer's  monthly  pay  for  one  month. 

A  person  punished  under  authority  of  this  article  who 
deems  his  punishment  unjust  or  disproportionate  to  the 
offense  may,  through  the  proper  channel,  appeal  to  the  next 
superior  authority,  but  may  in  the  meantime  be  required 
to  undergo  the  punishment  adjudged.  The  commanding 
officer  who  imposes  the  punishment,  his  successor  in  com- 
mand, and  superior  authority  shall  have  power  to  mitigate 
21358°— 20 17 

257 


^[333  CHAPTER  xm. 

or  remit  any  unexecuted  portion  of  the  punishment.  The 
imposition  and  enforcement  of  disciplinary  punishment 
under  authority  of  this  article  for  any  act  or  omission  shall 
not  be  a  bar  to  trial  by  court-martial  for  a  crime  or  offense 
growing  out  of  the  same  act  or  omission;  but  the  fact  that 
a  disciplinary  punishment  has  been  enforced  may  be  shown 
by  the  accused  upon  trial,  and  when  so  shown  shall  be  con- 
sidered in  determining  the  measure  of  punishment  to  be  ad- 
judged in  the  event  of  a  finding  of  guilty.  (But  see  par. 
l$2(a)  supra. 

While  commanding  officers  should  always  use  their  utmost 
influence  to  prevent  breaches  of  discipline  and  compose  con- 
ditions likely  to  give  rise  to  such  breaches,  they  should  also 
impose  and  enforce  the  disciplinary  punishment  authorized 
by  the  above  article.  This  authority,  involving  the  power, 
judgment,  and  discretion  of  the  commander,  can  not  be  dele- 
gated to  or  in  any  manner  participated  in  by  others,  but 
must  be  exercised  by  the  commander  upon  his  own  judgment 
and  in  strict  compliance  with  the  article  and  the  regulations 
prescribed  by  the  President  pursuant  thereto.  Accordingly, 
the  commanding  officer  of  a  detachment,  company,,  or  higher 
command  will  usually  dispose  of,  and  may  award  disciplin- 
ary punishment  for,  any  offense  committed  by  any  enlisted 
man  of  his  command  which  would  ordinarily  be  disposed 
of  by  summary  court-martial,  when  the  accused  does  not 
demand  trial  by  court-martial  before  the  commanding  officer  has 
made  and  announced  his  decision  in  the  case. 

As  remarked  by  the  major  general  commanding  in  G.  0.  73, 
W.  D.,  1892: 

"  The  increasing  number  of  trials  by  summary  court  and  the 
trivial  character  of  many  of  the  offences  tried  indicate  that  com- 
manding officers  frequently  fail  to  make  use  of  this  power.  They 
are  therefore  reminded  that  it  is  their  duty  to  use  all  reason- 
able means  to  prevent  the  occurrence  of  delinquencies  rather 
than  to  punish  them.  In  the  discharge  of  this  duty  they  may 
not  only  deprive  unworthy  soldiers  of  privileges  but  take  such, 
steps  as  may  be  necessary  to  enforce  their  orders.  It  is  believed 
that  the  proper  use  of  this  power  will  make  it  unnecessary  to 
bring  before  the  summary  court  many  of  the  trifling  delinquen- 
cies which  are  now  made  the  subject  of  trial;  indeed,  that  such 


258 


COTJRTS-MAKTIAL — PUNISHMENT.  If    334 

trifling  delinquencies  will  in  great  measure  be  prevented.  De- 
partment commanders  will  see  that  their  subordinate  command- 
ing officers  fulfill  their  duties  in  this  regard." 

334.  RECORD    OF    PUNISHMENT. — For    each    punishment 
awarded  the  commander  will  cause  to  be  made  in  the  com- 
pany punishment  book  a  brief  statement  showing — 

(a)  The  offense,  including  date. 

(b)  Punishment,  if  any,  with  date  on  which  awarded. 

(c)  Decision  of  higher  authority,  if  appeal  is  made; 
but  will  not  make  any  entry  thereof  on  the  service  record  of  the 
accused. 

335.  APPEALS. — If  an  appeal  is  made  to  the  next  superior 
authority,  it  shall  be  in  writing  through  the  immediate  com- 
mander awarding  the  punishment  or  his  successor,  who  will 
immediately  forward  it  to  the  superior  with  a  copy  of  the 
record.    An  appeal  shall  consist  of  a  brief  statement  signed 
by  the  accused,  giving  his  reasons  for  regarding  the  punish- 
ment as  unjust  or  disproportionate,  and  shall  be   accom- 
panied by  a  like  brief  statement  by  the  commander  in  sup- 
port of  the  punishment  awarded.     The  superior  will,  in 
passing  upon  the  appeal,  hear  no  witnesses  and  will  con- 
sider no  statements  other  than  those  forwarded  with  the 
appeal,  but  will  be  limited  strictly  to  the  consideration  of 
the  punishment  awarded.     When  justice  requires  such  ac- 
tion he  will  modify  the  punishment  or  set  it  aside,  but  will 
not  increase  it,  and  will  in  no  case  award  a  different  kind  of 
punishment.     After  having  considered  the  appeal  he  will 
return  the  record  to  the  commanding  officer   from  whom 
received,  with  a  statement  of  his  disposition  of  the  case. 

336.  NOT  LIMITED  TO  SOLDIERS. — The  power  is  not  limited 
in  its  application,  either  in  law  or  principle,  to  enlisted  men, 
but  may  with  propriety  be  applied  as  well  to  any  other  per- 
son subject  to  military  law,  including  commissioned  officers, 
especially  those  of  junior  grades.     Obviously,  in  the  case 
of  officers  the  occasion  for  such  action  will  be  less  frequent, 
the  variety  of  punishment  available  more  restricted,  and 
the  selection  of  the  most  effectual  punishment  more  perplex- 
ing, but  when  the  best  interests  of  discipline  require  such 
action  will  be  taken  with  firmness,  and  in  no  wise  restrained 


259 


If  336a  CHAPTEK  xiii. 

by  an  unwarranted  regard  for  the  commissioned  grade  of  the 
offender. 

336a.  War  Department  Policy — Disciplinary  Punishment  Pre- 
ferred to  Court-Martial. — It  is  the  policy  of  the  War  Depart- 
ment that  commanding  officers  should  resort  to  their  disciplinary 
powers  under  A.  W.  104  in  preference  to  employing  courts-mar- 
tial, and  more  especially  summary  courts-martial.  In  accord- 
ance with  this  policy  trials  by  court-martial,  and  particularly 
by  summary  courts-martial,  will  usually  be  resorted  to  only 
where  disciplinary  punishments  have  failed  to  prevent  infrac- 
tions of  discipline,  and  in  consequence  the  instances  of  disci- 
plinary punishment  should  far  exceed  the  number  of  trials.  It 
should  be  a  very  rare  case  where  a  soldier  is  tried  by  summary 
courts-martial  without  having  previously  been  repeatedly  sub- 
jected to  disciplinary  punishment. 

This  policy  does  not  leave  it  optional  with  the  commanding 
officer  of  the  detachment,  company,  or  higher  command  to 
either  impose  disciplinary  punishment  or  prefer  charges  in  his 
discretion.  On  the  contrary,  it  requires  him  to  resort  first  to 
disciplinary  punishment.  Inability  to  maintain  discipline  with- 
out frequent  resort  to  court-martial,  and  particularly  to  trials 
by  summary  courts-martial,  strongly  suggests  inefficiency,  unless 
the  circumstances  be  very  exceptional.  As  it  is  the  duty  of  a 
senior  commanding  officer  to  see  that  subordinate  commanders 
follow  this  policy,  he  must  accept  the  ultimate  responsibility 
for  the  number  of  inferior  court  trials  in  the  commands  of  his 
subordinate  commanding  officers.  No  commanding  officer  exer- 
cising court-martial  jurisdiction  can  escape  responsibility  for 
an  excessive  number  of  such  trials  by  the  excuse  that  organiza- 
tion.  commanders  have  represented  that  trials  are  necessary  to 
maintain  discipline.  Discipline  must  be  maintained  subject  to 
this  War  Department  policy,  which  commanding  officers  will 
rigidly  enforce. 

336b.  As  to  Officers,  in  Time  of  War  or  Emergency. — It  is 
notable  that  in  time  of  war  or  great  public  emergency  the 
power  of  punishment  by  a  commanding  officer  of  the  grade  of 
brigadier  general  or  of  higher  grade  extends  (under  the  one 
hundred  and  fourth  article  of  war,  as  amended  by  the  code  of 
1920),  as  to  officers  of  his  command  below  the  grade  of  major,  to 


2GO 


COURTS-MARTIAL — PUNISHMENT.  ^f    336C 

forfeiture  of  not  more  than  one-half  of  such  officer's  monthly 
pay  for  one  month. 

336c.  Procedure. — It  is  not  necessary  that  formal  charges  be 
filed.  But  the  accused  will  be  informed  orally  or  in  writing  of 
the  accusation,  and,  where  he  does  not  admit  the  commission 
of  the  offense,  the  commanding  officer  will  carefully  investigate 
the  case  in  the  same  manner  as  a  summary  court-martial,  ad- 
ministering oaths  to  all  persons  testifying  for  the  prosecution 
or  defense.  (But  see  par.  76a.)  The  investigation  will  in  all 
ordinary  cases  be  held  at  the  office  of  the  commanding  officer. 

336d.  In  Case  Accused  Demands  Trial. — If  the  accused  de- 
mands trial  by  court-martial,  then  (a)  if  charges  have  been 
filed  steps  will  promptly  be  taken  to  investigate  the  charges 
in  the  usual  manner,  or  (b)  if  charges  have  not  been  filed  the 
commanding  officer  may  himself  prefer  charges  or  may  direct  an 
investigation  to  be  made  to  determine  whether  charges  should 
be  preferred,  and,  in  either  case,  if  formal  charges  are  preferred 
they  will  be  investigated  in  the  usual  manner.  No  notation  or 
memorandum  of  any  kind  of  accused's  demand  for  trial  by 
court-martial  will  appear  upon  the  charges. 

SECTION  II. 
CONFINEMENT  IN  A  PENITENTIARY. 

337.  WHEN  AUTHORIZED. — The  forty-second  article  of  war 
follows  the  rules  of  the  Federal  Penal  Code  and  practice 
respecting  the  imposition  of  penitentiary  confinement  in  so 
far  as  they  can  be  applied  to  court-martial  procedure. 
Under  the  Federal  Penal  Code  any  offense  is  a  felony  which 
is  punishable  under  the  code  or  other  statute  of  the  United 
States  by  death,  or  by  imprisonment  for  a  term  exceeding  one 
year.  (Sec.  335,  Fed.  Pen.  Code  of  1910.)  But  no  person  may 
be  confined  in  a  penitentiary  unless  the  punishment  actually 
adjudged  for  an  offense  of  which  he  has  been  convicted 
exceeds  one  year.  Under  civil  procedure  it  is  not  permissible 
to  join  in  a  single  indictment  and  trial  offenses  of  a  different 
nature.  As  a  matter  of  practice,  also,  confinement  is  never 
ordered  to  be  executed  in  a  penitentiary  unless  among  the 
offenses  upon  which  the  sentence  is  awarded  is  found  a 
felony ;  that  is  to  say,  an  offense  of  a  civil  nature,  separately 


261 


^  338  CHAPTER  xm. 

punishable  by  confinement  to  exceed  one  year.  The  practical 
result  is  that  no  person  is  confined  in  a  penitentiary  unless 
both  o-f  the  following  conditions  subsist : 

(1)  The  confinement  that  could  lawfully  be  awarded  as 
punishment  of  some  one  of  the  offenses  of  which  he  stands 
convicted  (if  that  conviction  stood  alone)  would  exceed  one 
year. 

(2)  The  confinement  actually  adjudged  exceeds  one  year. 
The  ninet}'-third  and  ninety-sixth   articles  of  war  now 

confer  upon  courts-martial  jurisdiction  to  try  all  crimes  and 
offenses,  not  capital,,  of  which  persons  subject  to  military 
law  may  be  guilty.  Under  the  military  practice,  dissimilar 
offenses  may  be  joined  in  the  same  set  of  charges ;  convictions 
may  be  had  on  one  set  of  charges  joining  crimes  of  a  civil 
nature  with  purely  military  offenses,  and  a  single  sentence 
may  be  adjudged  on  all  the  convictions.  Also,  there  are 
certain  purely  military  offenses  which  are  by  statute  made 
punishable  by  confinement  in  a  penitentiary,  regardless  of 
the  term  of  confinement  imposed.  Notwithstanding  these 
departures  from  the  practice  of  Federal  courts,,  the  juris- 
diction granted  to  courts-martial  to  punish  offenses  of  a 
civil  nature  is  not  to  be  exercised  with  greater  harshness 
than  is  practiced  under  the  criminal  jurisdiction  of  United 
States  courts,  and  the  analogies  with  the  penal  rules  of  those 
courts  are  maintained,  as  far  as  they  can  be  preserved  under 
court-martial  procedure,  by  the  forty-second  article  of  war 
and  the  following  rules  of  practice,  which  result  from  that 
article. 

338.  CLASSES  OF  SENTENCES  TO  BE  EXECUTED  IN  A  PENI- 
TENTIARY.— Sentences  of  the  following  classes  may  be  exe- 
cuted in  a  penitentiary : 

Glass  1 — Commutation  of  death  sentence. — Any  confine- 
ment, whether  more  or  less  than  a  year,  awarded  by  way  of 
commutation  of  a  death  sentence^  may  be  executed  in  a  peni- 
tentiary; and  this  is  true  whether  the  offense  for  which  the 
sentence  of  death  was  awarded  was  of  a  military  or  of  a 
civil  nature,  and  whether  the  sentence  was  awarded  on  con- 
viction of  a  capital  charge  alone  or  on  conviction  on  a 
capital  charge  coupled  with  conviction  on  other  charges  not 
capital. 

262 


COURTS-MARTIAL, — PUNISHMENT.  ^[    338 

Class  % — Military  offenses. — A  sentence  of  confinement 
awarded  upon  conviction  of  one  or  more  of  the  military 
offenses  enumerated  in  this  class  may  be  executed  in  a  peni- 
tentiary, regardless  of  the  length  of  the  sentence  imposed, 
but  in  practice  a  penitentiary  should  not  be  designated  un- 
less the  confinement  adjudged  exceeds  one  year.  However, 
if  a  conviction  is  had  on  several  offenses,  either  military  or 
civil  in  nature,  one  of  which  is  included  in  this  class,  and 
the  sentence  adjudged  on  all  the  convictions  together  ex- 
ceeds one  year,  the  confinement  may  be  executed  in  a  peni- 
tentiary. The  military  offenses  comprised  in  this  class  are : 

(a)  Desertion  in  time  of  war. 

(b)  Repeated  desertion  in  time  of  peace. 

(c)  Mutiny. 

Class  3 — Offenses  of  a  civil  nature. — A  sentence  exceeding 
one  year's  confinement,  awarded,  either  on  conviction  of  any 
one  or  more  of  the  several  offenses  of  a  civil  nature  de- 
scribed below,  or  on  conviction  of  any  one  or  more  of  such 
civil  offenses  coupled  with  a  conviction  or  convictions  of  one 
or  more  military  offenses,  may  be  executed  in  a  penitentiary, 
if  any  one  of  such  several  offenses  of  a  civil  nature  standing 
alone  would  be  punishable  by  penitentiary  confinement  for 
more  than  one  year,  by  some  statute  of  the  United  States,  of 
general  application  within  the  continental  United  States  (ex- 
cepting section  289,  Penal  Code  of  the  United  States,  1910),  or  by 
the  law  of  the  District  of  Columbia, 

The  civil  offenses  contemplated  in  class  3  are: 

(a)  An  act  or  omission  specified  and  denounced  as  an 
offense  in  the  Penal  Code  of  the  United  States  (Federal 
Penal  Code  of  1910,  except  section  289  thereof),  and  made 
punishable  thereby  by  confinement  in  a  penitentiary  for 
more  than  one  year. 

(b)  An  act  or  omission  specified  and  denounced  as  an 
offense  in  any  other  statute  of  the  United  States,  of 
general  application  within  the  continental  United  States 
(always  excepting,  however,  section  289  of  the  Federal  Penal 
Code),  and  made  punishable  thereby  by  confinement  in  a 
penitentiary  for  more  than  one  year.     This  heading  has 
reference  particularly  to  penal  provisions  not  properly 


263 


If    339  CHAPTER  XIII. 

separable  from  the  administrative  laws  of  the  several 
branches  and  departments  of  Government,  and  not  in- 
cluded in  the  Penal  Code.  Such  offenses  will  rarely 
be  encountered  in  court-martial  practice. 

(c)  An  act  or  omission  recognized  as  an  offense  by 
the  law  of  the  District  of  Columbia,  wherever  committed 
or  omitted,  and  made  punishable  thereby  by  confinement  in 
a  penitentiary  for  more  than  one  year. 

By  the  phrase  "  the  law  of  the  District  of  Columbia  "  is  meant 
the  entire  body  of  law,  both  statutory  and  common  law,  in  force 
in  the  District  of  Columbia  on  the  date  of  the  commission  of  the 
offense. 

Offenses  under  this  head  that  may  be  encountered  in  court- 
martial  practice  include  the  offense  of  sodomy. 

339.  AUTHORITY    FOR    PENITENTIARY    SENTENCE    TO    BE 
CITED. — In  each  case  tried  by  general  court-martial  in  which 
a  penitentiary  is  designated  as  the  place  of  confinement  of 
the  person  tried,  the  record  of  trial,  when  forwarded  to  the 
Judge  Advocate  General  of  the  Army,  will  be  accompanied 
by  a  signed  statement  indicating  the  law  or  laws  authoriz- 
ing the  confinement  in  a  penitentiary  of  the  person  sentenced. 

If  the  law  relied  upon  as  authorizing  confinement  in  a 
penitentiary  be  a  Federal  statute,  an  accurate  citation  will 
be  regarded  as  sufficient  to  indicate  the  law,  but  if  any  other 
law  is  relied  upon  as  authorizing  such  confinement,  the 
law  will  be  quoted  in  full  in  the  required  statement. 

SECTION  III. 
WAR  DEPARTMENT  POLICY  REGARDING  PUNISHMENTS. 

340.  DESERTION.— The  policy  of  the  War  Department  re- 
specting punishment  for  desertion  was  announced  in  Gen- 
eral Orders,  No.  77,  War  Department,  June  10,  1911.    Cor- 
rective confinement  and  forfeiture  were  suggested  in  cases 
of  inexperienced  soldiers  who  by  surrender  manifested  a 
disposition  to  atone  for  their  offenses.     The  number  so  pun- 
ished and  saved  to  the  service  has  so  increased  each  year 
that  this  policy  has  been  enforced  with  fairly  satisfactory 
results.     In  addition  a  limited  number  of  this  class  of  of- 


264 


COURTS-MARTIAL — PUNISHMENT.  ^f    340 

fenders  has  been  restored  to  duty  without  trial  under  the 
provisions  of  A.  R.  131. 

Since  that  order  was  issued  important  changes  have  been 
introduced  in  our  military  penology.  Purely  military  of- 
fenders serving  sentences  in  the  United  States  Disciplinary 
Barracks  at  Fort  Leavenworth  and  its  branches  may  be  re- 
stored to  an  honorable  status  and  complete  their  enlistment. 
By  the  act  of  August  22,  1912  (37  Stat.  356),  reenlistment 
of  this  class  of  offenders  is  authorized  with  the  approval,  in 
each  case,  of  the  'Secretary  of  War.  Under  the  provisions 
of  the  act  of  April  27,  1914  (38  Stat.  354),  dishonorable 
discharge  may  be  suspended  with  a  view  to  restoration  to 
duty  by  remission  thereof  should  the  conduct  of  the  offender 
v\Tarrant.  There  are  now  additional  means  of  saving  men 
to  the  colors — men  whose  offenses  are  thoughtless  acts  due 
to  youth  or  inexperience  or  committed  under  some  special 
stress,  and  for  these  reasons  have  in  them  less  of  the  element 
of  culpability.  Supplementing  these  methods  is  the  estab- 
lishment of  disciplinary  organizations  at  the  United  States 
Disciplinary  Barracks,  where  the  offenders  of  this  class  who 
desire  reenlistment  or  restoration  may  receive  an  intensive 
practical  training  to  fit  them  for  efficient  service  from  the 
moment  of  rejoining. 

These  periods  of  confinement  are  graduated  so  as  to  pre- 
vent inequalities  of  punishment  for  like  degrees  of  culpabil- 
ity and  are  sufficient,  it  is  believed,  to  meet  the  ends  of  pun- 
ishment where  restoration  to  duty  is  not  in  contemplation. 
Where  restoration  is  in  contemplation,  as  in  case  of  purely 
military  offenders,  including  deserters,  the  period  of  con- 
finement imposed  is,  under  the  new  policy,  in  practical  effect 
the  maximum  of  an  indeterminate  sentence.  In  other  words, 
the  period  for  which  the  offender  is  held  depends  entirely 
upon  himself.  With  good  conduct  and  proper  progress  to- 
ward reform  evidencing  efficiency  in  training  and  fitness 
to  resume  service  relations  the  sentence  of  confinement  ter- 
minates and  the  honorable  status  of  duty  with  the  colors  is 
resumed. 

While  it  is  the  effect  of  this  policy  to  mitigate  the  condi- 
tion of  the  peace  deserter  who  desires  to  redeem  his  record 
and  earn  an  honorable  restoration  to  duty  with  the  colors, 

265 


If  340  CHAPTER  xm. 

it  carries  no  substantial  mitigation  as  to  other  classes  of 
deserters.  Experience  has  not  thus  far  demonstrated  the 
wisdom  of  any  change  in  the  policy  of  severe  punishment 
for  this  latter  class.  An  engagement  for  military  service 
has  little  in  common  with  an  ordinary  private  contract  for 
personal  service,  and  the  fact  that  an  individual  may  aban- 
don such  a  contract  with  only  minor  consequences  to  himself 
furnishes  no  suggestion  that  a  corresponding  rule  may  be 
properly  adopted  in  the  Army.  Nor  does  the  fact  that  the 
early  requirement  of  the  common  law  that  a  call  to  civil 
office  or  civil  employment  under  the  Government  could  not 
be  disregarded  by  the  citizen,  nor  the  obligations  of  such 
office  or  employment  be  laid  down  at  his  will,  no  longer 
obtains,  furnish  any  such  suggestion.  An  engagement  for 
military  service  creates  a  special  status,  and  many  obliga- 
tions flow  from  that  status  which  are  not  obligations  of  the 
citizen  in  the  civil  service  of  the  Government  or  under  a 
private  contract  for  personal  service.  Other  closely  related 
considerations  inherent  in  the  nature  of  military  service  sup- 
port this  view.  The  Army  is  an  emergent  arm  of  the  public 
service  which  the  Nation  holds  ready  for  a  time  of  great 
peril.  Military  service  is  an  obligation  which  every  citizen 
owes  the  Government.  It  is  settled  law  that  such  service 
may  be  compelled,  if  necessary,  by  draft.  Nor  is  the  obli- 
gation of  the  soldier  who  volunteers  for  a  fixed  period  dif- 
ferent from  that  of  the  drafted  soldier.  By  his  act  of  volun- 
teering he  consecrates  himself  to  the  military  service.  His 
engagement,  supported  by  an  oath  of  allegiance,  is  that  the 
Nation  may  depend  upon  him  for  such  service  during  the 
fixed  period,  whatever  may  be  the  emergency.  When  this 
engagement  is  breached  a  high  obligation  to  the  Nation  is 
disregarded,  a  solemn  oath  of  allegiance  is  violated,  and 
the  Government  is  defrauded  in  the  amount  of  its  outlay 
incident  to  inducting  the  soldier  into  the  military  service, 
training,  clothing,  and  caring  for  him  while  he  remains  in 
that  service,  and  transporting  him  to  the  station  from  which 
he  deserts.  Desertion  is  thus  seen  to  be,  not  simply  a  breach 
of  contract  for  personal  service,  but  a  grave  crime  against 
the  Government;  in  time  of  war  perhaps  the  gravest  that 


266 


COURTS-MABTIAL — PUNISHMENT.  If    341 

a  soldier  can  commit^  and  at  such  times  punishable  with 
death.  These  facts  furnish  ample  justification  for  a  con- 
tinuance of  the  policy  of  severe  punishment  for  the  offense 
of  desertion  in  time  of  peace,  subject  only  to  the  qualification 
that  it  should  not  be  severe  to  the  degree  of  barring  an 
honorable  restoration  to  duty  of  the  thoughtless,  young,  or 
inexperienced  offenders  who  desert  and  who,  on  return, 
manifest  a  desire  to  atone  for  their  desertions  and  qualify 
themselves  in  character  and  training  for  such  restoration 
by  service  in  the  disciplinary  battalions  and  companies  now 
organized  at  the  United  States  Disciplinary  Barracks. 

341.  SEGREGATION  OP  PKISONERS. — It  is  the  policy  of  the 
War  Department  to  separate,  so  far  as  practicable,  general 
prisoners  co/nvieted  of  offenses  punishable  by  penitentiary 
confinement  from  general  prisoners  convicted  of  purely  mili- 
tary offenses  or-  of  misdemeanors  in  connection  with  purely 
military  offenses.    In  furtherance  of  this  policy,  reviewing 
authorities  will  designate  a  penitentiary  as  the  place  of  con- 
finement of  general  prisoners  sentenced  to  be  confined  for 
more  than  one  year  according  to  the  rules  laid  down  in  Sec- 
tion II,  supra,  except  in  individual  cases  in  which  the  proved 
circumstances  show  that  the  holding  of  the  prisoners  so 
convicted  in  barracks  associations  with  misdemeanants  and 
military  offenders  will  not  be  to  the  detriment  of  the  latter. 
Instructions  will  be  issued  from  time  to  time  by  the  War 
Department  to  commanders  having  general  court-martial 
jurisdiction  regarding  the  place  of  confinement  for  general 
prisoners  sentenced  to  confinement  in  penitentiaries. 

342.  ADAPTATION  OF  PUNISHMENTS. — In  cases  where  the 
punishment  is  discretionary  the  best  interests  of  the  service 
and  of  society  demand  thoughtful  application  of  the  fol- 
lowing principles :  That  because  of  the  effect  of  confinement 
upon   the   soldier's   self-respect   confinement   is   not   to   be 
ordered  when  the  interests  of  the  service  permit  it  to  be 
avoided;  that  a  man  against  whom  there  is  no  evidence  of 
previous  convictions  for  the  same  or  similar  offenses  should 
be  punished  less  severely  than  o»e  who  has  offended  re- 
peatedly; that  the  presence  or  absence  of  extenuating  or 
aggravating  circumstances  should  be  taken  into  considera- 


267 


If  342a  ' '"CHAPTER  "xm.' 

tion  in  determining  the  measure  of  punishment  in  any  case ; 
that  the  maximum  limits  of  punishment  authorized  are  to 
be  applied  only  in  cases  in  which,  from  the  nature  and  cir- 
cumstances of  the  offense  and  the  general  conduct  of  the 
offender,  severe  punishment  appears  to  be  necessary  to  meet 
the  ends  of  discipline;  and  that  in  adjudging  punishment 
the  court  should  take  into  consideration  the  individual  char- 
acteristics of  the  accused,  with  a  view  to  determining  the 
nature  of  the  punishment  best  suited  to  produce  the  desired 
results  in  the  case  in  question,  as  the  individual  factor  in  one 
case  may  be  such  that  punishment  of  one  kind  would  serve 
the  ends  of  discipline,  while  in  another  case  punishment  of 
a  different  kind  would  be  required.  As  an  instance  of  the 
necessity  for  adapting  punishment  to  the  particular  case 
under  consideration,  it  is  to  be  noted  that  prior  experience 
with  detention  of  pay  by  sentence  of  court-martial  indicates 
that  this  form  of  punishment,  while  not  generally  applicable, 
wras  nevertheless  found  to  be  an  effective  means  of  restraint 
and  discipline  for  a  considerable  number  of  offenders. 

342a.  Same  Subject — Penitentiary  Confinement. — For  exam- 
ple, in  accordance  with  the  principles  of  the  preceding  para- 
graph, by  no  means  every  offense  that  is  legally  punishable  by 
confinement  in  a  penitentiary  need  be  so  punished  in  order  to 
uphold  justice  and  discipline  in  the  Army.  The  dividing  line  be- 
tween offenses  legally  punishable  by  penitentiary  confinement 
and  those  which  are  not  so  punishable  is  necessarily,  in  many 
cases,  more  or  less  arbitrary.  For  instance,  the  difference  of  a 
single  cent  in  the  value  of  two  articles  stolen  may  make  the 
offense  in  one  case  grand  larceny,  legally  punishable  by  peni- 
tentiary confinement,  and  in  the  other  case  petty  larceny  not 
legally  punishable  by  confinement  in  such  an  institution.  Ac- 
cordingly, in  considering  the  place  of  confinement  to  be  desig- 
nated, the  reviewing  authority  should  take  into  consideration 
all  of  the  circumstances,  the  nature  of  the  offense,  the  offender's 
age,  his  mental  condition  and  development,  and  his  prior  civil 
and  military  record,  with  a  view  to  determining  whether  the 
interests  of  justice  and  discipline  demand  confinement  in  a  peni- 
tentiary where  such  confinement  may  be  legally  directed,  or 
whether  confinement  in  a  disciplinary  barracks  would  serve  to 


268 


COURTS-MARTIAL — PUNISHMENT.  ^f    343 

vindicate  the  law  and  not  violate  the  reformatory  character  of 
the  disciplinary  barracks,  or  whether  any  other  disposition 
should  be  made  of  the  case. 

In  the  cases  of  youthful  offenders,  who  have  not  exhibited 
fixed  criminal  tendencies  and  whose  offenses  are  not  of  such  a 
character  as  to  endanger  the  future  of  the  disciplinary  barracks 
as  a  reformatory  institution,  the  propriety  of  designating  the 
disciplinary  barracks,  instead  of  a  penitentiary,  as  the  place  of 
confinement  should  always  be  carefully  considered. 

343.  Relative  severity  of  punishments. — The  usual  punish- 
ments imposed  upon  soldiers  are  the  following,  beginning 
with  the  le.^st  severe : 

(1)  Detention  of  pay, 

(2)  Forfeiture  of  pay, 

(3)  Reduction, 

(4)  Ha^d  labor  without  confinement, 

(5)  Confinement  at  hard  labor,  and 

(6)  Dishonorable  discharge. 

In  the  absence  of  evidence  of  two  or  more  previous  convic- 
tions, a  minor  offense,  the  nature  of  which  appears  to  de- 
mand punishment  by  hard  labor,  should  ordinarily  be  pun- 
ished by  hard  labor  without  confinement,  rather  than  by  con- 
finement at  hard  labor.  For  offenses  properly  punishable  by 
detention  of  pay,  forfeiture  of  pay,  reduction,  or  hard  labor 
without  confinement,  those  forms  of  punishment  should,  as  a 
rule,  be  resorted  to  before  confinement  at  hard  labor  is 
imposed. 

343a.  Limits  of  punishments  upon  reheari^igs. — In  determining 
whether  or  not  a  punishment  adjudged  upon  a  rehearing  is  in  ex- 
cess of  or  more  severe  than  a  punishment  adjudged  at  the  orig- 
inal hearing  within  the  meaning  of  A.  W.  50Vi,  reviewing 
authorities  will  be  guided  by  the  following,  none  of  fche  punish- 
ments enumerated  in  any  one  of  the  following  groups  to  be  re- 
garded as  in  excess  of  or  more  severe  than  the  first  punishment 
mentioned  in  the  same  group : 

WHEN  ACCUSED  IS  AN  OFFICER. 
GROUP  A. 

(1)  Death. 

(2)  All  other  legal  punishments. 


*f  34  3a  CHAPTER  xiii. 

GROUP   », 

(1)  Dismissal  with  Confinement  at  Hard  Labor. 

(2)  Dismissal. 

(3)  Loss  of  rank  or  suspension  from  rank,  command,  or  duty, 
and  fine  or  forfeiture  not  in  excess  of  what  accused's  pay  would 
have  been  during  the  period  of  confinement  provided  in  original 
sentence  and  confinement  to  limits  of  posts  or  reservation  for 
period  not  in  excess  of  period  of  confinement  provided  in  original 
sentence  and  reprimand  or  admonition;  or  any  one  or  more  of 
said  punishments. 

GROUP   C. 

(1)  Dismissal. 

(2)  Loss  of  rank  or  suspension  from  rank,  command,  or  duty, 
and  fine  or  forfeiture  not  to  exceed  half  of  one  year's  pay  of  the 
accused  and  confinement  to  limits  of  posts  or  reservation  not  to 
exceed  six  months  and  reprimand  or  admonition;  or  any  one  or 
more  of  said  punishments. 

GROUP    D. 

(1)  Loss  of  rank. 

NOTE. — This  punishment  varies  so  much  that  its  equivalents  can 
not  be  stated  in  the  abstract. 

GROUP   B. 

(1)  Suspension  from  Eank,  Command,  or  Duty  with  Loss  of 
Pay  or  Part  of  Pay. 

(2)  Fine  or  forfeiture  not  in  excess  of  loss  of  pay  provided  in 
original  sentence  and  confinement  to  limits  of  post  or  reservation 
for  period  not  exceeding  period  of  suspension  adjudged  in  origi- 
nal sentence  and  reprimand  or  admonition;  or  any  one  or  more 
of  said  punishments. 

GROUP   F. 

(1)  Suspension  from  Bank,  Command,  or  Duty  without  Loss 
of  Pay. 

(2)  Confinement  to  limits  of  posts  or  reservation  for  period  not 
exceeding  period  of  suspension  adjudged  in  original  sentence  and 
reprimand  or  admonition;  or  any  one  or  more  of  said  punish- 
ments. 


270 


COURTS-MARTIAL — PUNISHMENT.  ^f    343a 

GROUP   G. 

(1)  Fine  or  Forfeiture  of  Pay. 

(2)  Confinement  to  limits  of  post  or  reservation  for  such  num- 
ber of  months  as  shall  result  from  dividing  the  fine  or  forfeiture 
adjudged  in  the  original  sentence  by  one-fourth  of  the  monthly 
pay  of  the  accused  and  reprimand  or  admonition;  or  any  one  or 
more  of  said  punishments. 

GROUP   II. 

(1)  Confinement  to  Limits  of  Post  or  Reservation. 

(2)  Reprimand  or  admonition. 

GROUP   I. 

(1)  Reprimand. 

(2)  Admonition. 

NOTE. — The  foregoing  scale  applies  also  to  warrant  officers,  mem- 
bers of  the  Army  Nurse  Corps,  and  field  clerks,  so  far  as  practicable. 

WHEN  ACCUSED  IS  A  SOLDIEB. 
GROUP   A. 

(1)  Death. 

(2)  All  other  legal  punishments. 

GROUP   B. 

(1)  Dishonorable  Discharge  with  Confinement  at  Hard  Labor. 

(2)  Dishonorable  discharge. 

(3)  Reduction  and  deprivation  of  rating  and  deprivation  of 
rights  and  privileges  arising  from  certificate  of  eligibility  to 
promotion,  and  confinement  at  hard  labor  or  hard  labor  without 
confinement  for  period  not  exceeding  period  of  confinement  pro- 
vided in  original  sentence,  and  forfeiture  or  detention  of  pay 
not  in  excess  of  what  accused's  pay  would  have  been  for  period 
of  confinement  in  original  sentence,  and  reprimand  or  admoni- 
tion; or  any  one  or  more  of  said  punishments. 

GROUP    C. 

(1)  Dishonorable  Discharge. 

(2)  Reduction  and  deprivation  of  rating  and  deprivation  of 
rights  and  privileges  arising  from  certificate  of  eligibility  to 


271 


^[  34 3a  CHAPTER  xiii. 

promotion,  and  confinement  at  hard  labor  or  hard  labor  without 
confinement  for  a  period  not  exceeding  six  months,  and  forfei- 
ture or  detention  of  pay  for  a  period  not  exceeding  six  months, 
and  reprimand  or  admonition ;  or  any  one  or  more  of  said  punish- 
ments. 

GROUP   D. 

(1)  Reduction  or  Deprivation  of  Eating  or  Both  of  Said  Pun-    • 
ishments. 

(2)  Forfeiture  or  detention  of  pay  for  period  not  in  excess  of 
three  months  and  reprimand  or  admonition. 

GROUP   E. 

(1)  Confinement  at  Hard  Labor. 

(2)  Hard  labor  without  confinement.     (See  table  of  equiva- 
lents in  Executive  order.) 

(3)  Forfeiture  or  detention  of  pay.     (See  table  of  equivalents 
in  Executive  order.) 

(4)  Reduction  and  deprivation  of  rating  if  period  of  confine- 
ment in  original  sentence  exceeded  three  months. 

(5)  Reprimand  or  admonition. 

GROUP    F. 

(1)  Hard  Labor  without  Confinement. 

(2)  Confinement  at  hard  labor,     (See  table  of  equivalents  in 
Executive  order.) 

(3)  Forfeiture  or  detention  of  pay.     (See  table  of  equivalents 
in  Executive  order.) 

(4)  Reprimand  or  admonition. 

GROUP   G. 

(1)  Forfeiture  of  Pay. 

(2)  Confinement  at  hard  labor  or  hard  labor  without  confine- 
ment.    (See  table  of  equivalents  in  Executive  order.) 

(3)  Detention  of  pay.     (See  table  of  equivalents  in  Executive 
order.) 

(4)  Reprimand  or  admonition. 


272 


COURTS-MARTIAL,    -PUNISHMENT.  ^    346 

GROUP   H. 

(1)  Detention  of  Pay. 

(2)  Confinement  at  hard  labor  or  hard  labor  without  confine- 
ment or  forfeiture  of  pay.     (See  table  of  equivalents  in  Execu- 
tive order.) 

(3)  Reprimand  or  admonition. 

GROUP   I. 

(1)  Reprimand. 

(2)  Admonition. 

SECTION  IV. 

PROHIBITED  PUNISHMENTS. 

344.  BY  STATUTE. — Cruel  and  unusual  punishments  of  every 
kind,  including  flogging,  branding,  marking,  or  tattooing  on 
the  body,  are  prohibited.     (A.  W.  41.) 

345.  BY  CUSTOM  AND  REGULATIONS. — Many  punishments 
formerly  sanctioned  have  now,  under  a  more  enlightened 
spirit  of  penology,  become  so  obsolete  as  to  be  effectually 
prohibited  by  custom  without  the  necessity  of  regulations; 
among  these  are  carrying  a  loaded  knapsack,  wearing  irons 
(both  handcuffs  and  leg  irons — these  are  now  used  only  in 
exceptional  cases  for  the  purpose  of  preventing  escape  and 
not  as  a  punishment),  shaving  the  head,  placarding,  pillory, 
stocks,  and  tying  up  by  the  thumbs.     To  impose  military 
duty  in  any  form  as  a  punishment  must  tend  to  degrade  it, 
to  the  prejudice  of  the  best  interests  of  the  service.     Such 
punishments,  therefore,  as  imposing  tours  of  guard  duty  or 
requiring  a  soldier  to  sound  all  calls  at  the  post  for  a  cer- 
tain period  are  forbidden.    'Solitary  confinement  on  a  bread 
and  water  diet  and  the  placing  of  a  prisoner  in  irons  are 
regarded  as  means  of  enforcing  prison  discipline.    They  will 
not  be  imposed  as  a  punishment  by  a  court-martial. 

SECTION  Y. 
DEATH— COWARDICE— FRAUD. 

346.  DEATH  PENALTY. — Xo  person  shall,  by  general  court- 
martial,  be  convicted  of  an  offense  for  which  the  death 
penalty  is  made  mandatory  by  law,  nor  sentenced  to  suffer 

21358°— 20 18 


273 


<[[  846  CHAPTER  xm. 

death,  except  by  the  concurrence  of  all  of  the  members  of 
said  court-martial  present  at  the  time  the  vote  is  taken.  Where 
the  death  penalty  is  not  mandatory  but  is  discretionary,  a 
conviction  may  be  determined  by  a  two-thirds  vote  of  those 
members  present  at  the  time  the  vote  is  taken;  but  all  of  the 
members  present  at  the  time  the  vote  is  taken  on  the  sentence, 
must  concur  in  imposing  the  death  sentence. 

Courts-martial  have  no  power  to  impose  the  death  penalty, 
except  for  offenses  expressly  made  punishable  by  death  by 
the  Articles  of  War.  (A.  W.  43.)  A  court-martial,  in  im- 
posing the  sentence  of  death,  should  not  designate  the  time 
and  place  for  its  execution,  such  designation  not  being 
within  its  province,  but  pertaining  to  that  of  the  reviewing 
or  confirming  authority.  If  it  does  so  designate,  this  part 
of  the  sentence  may  be  disregarded  and  a  different  time  and 
place  be  fixed  by  the  reviewing  or  confirming  authority. 
(Digest,  p.  165,  XCVI,  B.)  If  the  designated  day  passes 
without  execution,  the  same  authority  or  his  superior  may 
name  another  day.  Death  by  hanging  is  considered  more 
ignominious  than  death  by  shooting  and  is  the  usual  method 
of  execution  designated  in  the  case  of  spies,  of  persons  guilty 
of  murder  in  connection  with  mutiny,  or  sometimes  for  de- 
sertion in  the  face  of  the  enemy;  but  in  case  of  a  purely 
military  offense,  as  sleeping  on  post,  such  sentence  when 
imposed  is  usually  "to  be  shot  to  death  with  musketry." 
Hanging  is  the  proper  method  of  executing  a  death  sentence 
when  imposed  for  violation  of  A.  W.  92.  For  the  sake  of 
example  and  to  deter  others  from  committing  like  offenses, 
the  death  sentence  may,  when  deemed  advisable,  be  executed 
in  the  presence  of  the  troops  of  the  command. 

347.  COWARDICE — FRAUD — ACCESSORY  PENALTY. — When  an 
officer  is  dismissed  from  the  service  for  cowardice  or  fraud, 
the  crime,  punishment,  name,  and  place  of  abode  of  the 
delinquent  shall  be  published  in  the  newspapers  in  and 
about  the  camp  and  in  the  State  from  which  the  offender 
came  or  where  he  usually  resides ;  and  after  such  publication 
it  shall  be  scandalous  for  an  officer  to  associate  with  him. 
(A.  W.  44.) 

The  terms  "  cowardice  "  and  "  fraud  "  as  employed  in  this 
article  refer  mainly  to  the  offenses  made  punishable  by  A. 

274 


COURTS-MARTIAL — PUNISHMENT.  ^    348 

W.  75  and  94.  With  these,  however,  may  be  regarded  as 
included  all  offenses  in  which  fraud  or  cowardice  is  neces- 
sarily involved,  though  the  same  be  not  expressed  in  terms 
in  the  charge  or  specification.  (Digest,  p.  166,  C,  A.)  The 
publication  throughout  the  United  States  in  press  dispatches 
of  "  the  crime,  punishment,  name,  and  place  of  abode  "  of 
the  accused  is  a  sufficient  compliance  with  the  article.  (See 
Digest,  p.  167,  C,  B.) 

SECTION  VI. 
MAXIMUM  LIMITS. 

348.  BY  WHOM  PRESCRIBED — WHEN  APPLICABLE. — When- 
ever the  punishment  for  a  crime  or  offense  made  punishable 
by  these  articles  is  left  to  the  discretion  of  the  court-martial, 
the  punishment  shall  not  exceed  such  limit  as  the  President 
may  from  time  to  time  prescribe:  Provided,  that  in  time  of 
peace  the  period  of  confinement  in  a  penitentiary  shall  in  no 
case  exceed  the  maximum  period  prescribed  by  the  law  which, 
under  article  42  of  these  articles,  permits  confinement  in  a 
penitentiary,  unless  in  addition  to  the  offense  so  punishable 
under  such  law  the  accused  has  been  convicted  at  the  same  time 
of  one  or  more  other  offenses.  (A.  W.  45.) 


275 


EXECUTIVE  ORDER. 

MAXIMUM  PUNISHMENT. 

276  » 


349.  Executive  order, — The  following  Executive  order  becomes 
operative  on  February  4,  1921.  (See,  as  to  offenses  prior  to  that 

date,  Article  IX  of  the  order.) 

THE  WHITE  HOUSE, 

December  10,  1920. 

Under  authority  of  Article  of  War  No.  45,  as  amended  by  an  act  of 
Congress  approved  June  4,  1920,  the  following  maximum  limits  of 
punishments  of  soldiers  are  prescribed: 

AETICLE  I. 


Article  of  War.  f 

Oflenses. 

Punishments. 

Dis- 
honor- 
able  dis- 
charge, 
forfeit- 
ure of  all 
pay  and 
allow- 
ances 
due  and 
4j  become 
due. 

Confine- 
ment at 
hard  labor, 
not  to  ex- 
exceed— 

For- 
feiture 
of  two- 
thirds 
pay 
per 
month, 
not 
to  ex- 
ceed— 

Forfeit- 
ure of 

pay. 

not 
to  ex- 
ceed— 

£ 

Months. 

i 

Q 

Months. 

| 

54 

m 

c 

58 

0 

e 

c 
c 

£9 

€1 

0 

0 

Enlistment,  fraudulent: 
Procured  by  means  of  willful  misrepre- 
sentation or  concealment  of  a  fact  in  re- 
gard to  a  prior  enlistment  or  discharge, 
or  in  regard  to  a  conviction  of  a  civil  or 
military  offense,  or  in  regard  to  imprison- 
ment under  sentence  of  a  court. 
Other  cases  of  

Yes  

6 

Yes  

3 

Attempting  to  desert: 
After  not  more  than  six  months  in  service.  . 
After  more  than  six  months  in  service  
In  execution  of  a  conspiracy  or  in  the 
presence   of   an    unlawful    assemblage 
which  the  troops  may  be  opposing. 
Desertion: 
Terminated  by  apprehension— 
Not  more  than  6  months  in  service  at 
time  of  desertion. 
More  than  6  months  in  service  at  time 
of  desertion. 
Terminated  by  surrender- 
After  absence  of  not  more  than  60  days. 
After  absence  of  more  than  60  days  .  .  . 

Yes  

fi 

Yes  
Yes  

3 

9 

.... 





Yes  

1 

Yes  

?. 

Yes... 

fl 

Yes  .... 

1 

In  the  execution  of  a  conspiracy  or  in 
the  presence  of  an  unlawful  assem- 
blage which  the  troops  may  be  oppos- 
ing. 
Advising  another  to  desert  

Yes  

| 

| 

6 

Assisting  knowingly,  or  persuading  another  to 
desert. 
Absence  without  leave: 
From    command,    quarters,    station,   or 
camp  — 
For  not  more  than  60  days,  for  each  day 
or  fraction  of  a  day  of  absence. 
For  more  than  60  days  

Yes  

1 

3 

2 

Yes  

A 

From  guard  — 

15 

For  more  than  1  hour..  . 

3 

3 

*  The  letter  "c"  in  the  margin  indicates  thit  the  former  limit  of  punishment  is  changed 
by  this  order. 


2T7 


EXECUTIVE   ORDER. 


Articles  of  War. 

Offenses. 

* 

Punishments. 

Dis- 
honor- 
able  dis- 
charge, 
forfeit- 
ure of  all 
pay  and 
allow- 
ances 
due  and 
to  become 
due. 

Confine- 
ment at 
hard  labor, 
not  to  ex- 
exceed— 

For- 
feiture 
of  two- 
thirds 
pay 
per 
month, 
not 
to  ex- 
ceed— 

Forfeit- 
ure of 
pay, 

not 
to  ex- 
ceed— 

£ 

Months. 

1 
ft 

Months. 

1 

62 
63 
65 

Failing  to  repair  at  the  fixed  time  to  the  prop- 
erly appointed  place   of   assembly  for,  or 
place  for: 

Z 

Brill                 

Fatigue 

Gallerv  practice           

Guard  mounting 

Inspection  

Instruction  

? 

2 

Parade        

Prison  guard 

Review 

School    

Stable  duty        

Target  practice 

March                                                              ' 

Reveille  or  retreat  roll  call  1  

1 

5 

2 

Leaving   without    permission   the    properly 
appointed  place  of  assembly  for,  or  place  for: 
Athletic  exercise 

Drill   

Fatigue     

Field  exercise                 .... 

Gallery  practice 

Guard  mounting  

Horse  exercise  

Inspection.  

Instruction  

Muster 

Parade  

Prison  guard        ....    

Review 

School  

Stable  duty      

Target  practice                    .    '  . 

Reveille  or  retreat  roll  call  

Using  contemptuous  or  disrespectful  words 
against  the  President,  Vice  President,  etc. 
Behaving  with  disrespect  toward  his  superior 
officer. 
Attempting  to  strike  or  attempting  otherwise 
to  assault  a  warrant  officer  or  a  noncommis- 
sioned officer  in  the  execution  of  his  office. 
Behaving  in  an  insubordinate  or  disrespectful 
manner  toward  a  warrant  officer  or  a  non- 
commissioned officer  in  the  execution  of  his 
office. 
Disobedience,  willful,  of  the  lawful  order  of  a 
warrant  officer  or  a  noncommissioned  officer 
in  the  execution  of  his  office. 
Striking  or  otherwise  assaulting  a  warrant 
officer  or  a  noncommissioned  officer  in  the 
execution  of  his  office. 

Yes  

i 

fi 

6 
6 

2 

6 

6 

? 

fi 

Yes  

i 

278 


EXECUTIVE   ORDER. 


Articles  of  War. 

Offenses. 

Punishments. 

Dis- 
honor- 
able  dis- 
charge, 
forfeit- 
ure of  all 
pay  and 
allow- 
ances 
due  and 
to  become 
due. 

Confine- 
ment at 
hard  labor, 
not  to  ex- 
exceed  — 

For- 
feiture 
of  two- 
thirds 
pay 
per 
month, 
not 
to  ex- 
ceed — 

Forfeit- 
ure of 
pay, 
not 
to  ex- 
ceed— 

£ 

Months. 

OT 

% 
« 

Months. 

1 

ft 

68 

c 

c 
c 

69 
73 

83 

84 

Threatening  to  strike  or  otherwise  assault,  or 
using  other  threatening  language  toward  a 
warrant  officer  or  a  noncommissioned  officer 
in  the  execution  of  his  office. 
Using  insulting  language  toward  a  warrant  offi- 
cer or  a  noncommissioned  officer  in  the  exe- 
cution of  his  office. 
Drawing  a  weapon  upon  a  nurse,  band  leader, 
warrant  officer,  field  clerk,  or  a  noncommis- 
sioned officer  quelling  a  quarrel,  fray,  or  dis- 
order. 
Refusing  to  obey  a  nurse,  band  leader,  warrant 
officer,  field  clerk,  or  a  noncommissioned  offi- 
cer quelling  a  quarrel,  frav,  or  disorder. 
Threatening  a  nurse,  band  leader,  warrant  offi- 
cer, field  clerk,  or  a  noncommissioned  officer 
quelling  a  quarrel,  fray,  or  disorder. 

4 

4 
2 

2 

Yes  

3 

Yes  

1 

fi 

6 

1 

1 

Escaping  from  confinement  

Yes  .. 

1 

Releasing,  without  proper  authority,  a  prisoner 
committed  to  his  charge. 
Suffering  a  prisoner  committed  to  his  charge  to 
escape: 

Yes  

1 

Yes  

1 

6 

6 

3 
6 

Suffering,  through  neglect,  military  property  to 
be  damaged,  lost,  spoiled,  or  wrongfully  dis- 
posed of: 
O  f  a  value  of  $20  or  less  

T 

Of  a  value  of  $50  or  less  and  more  than  $20  . 
Of  a  value  of  more  than  $50  

ft 

Yes  

1 

Suffering,  willfully,  military  property  to  be 
damaged,  lost,  spoiled,  or  wrongfully  dis- 
posed of: 
Of  a  value  of  $20  or  less  

6 

6 

Of  a  value  of  $50  or  less  and  more  than  $20  . 
Of  a  value  of  more  than  $50           

Yes  .. 

6 

Yes 

2 

Injuring  or  losing,  through-neglect,  horse,  arms, 
ammunition,     accouterments,    equipment, 
clothing,  or  other  property  issued  for  use  in 
the  military  service,  or  items  belonging  to 
two  or  more  of  said  classes: 
Of  a  value  of  $20  or  less  

3 

3 
6 

Of  a  value  of  $50  or  less  and  more  than  820. 
Of  a  value  of  more  than  $50  

0 

Yes  

1 

Injuring    or    losing,    willfully,    horse,    arms, 
ammunition,     accouterments,     equipment, 
clothing,  or  other  property  issued  for  use  in 
the  military  service,  or  items  belonging  to 
two  or  more  of  said  classes: 
Of  a  value  of  $20  or  less.  .          .      ... 

6 

6 

Of  a  value  of  $50  or  less  and  more  than  $20  . 
Of  a  value  of  more  than  $50 

Yes 

6 

Yes 

? 

Selling  or  otherwise  wrongfully  disposing  of 
horse,   arms,   ammunition,    accouterments, 
equipment,  clothing,  or  other  property  issued 
for  use  in  the  military  service,  or  items  belong- 
ing to  two  or  more  of  said  classes: 
Of  a  value  of  $20  or  less 

Yes... 

6 

Of  a  value  of  $50  or  less  and  more  than  $20  . 

Yes 

1 

Yes... 

6 

279 


EXECUTIVE   ORDER. 


Articles  of  War.  ( 

Punishments. 

Offenses. 

Dis- 
honor- 
able  dia- 
charge, 
forfeit- 
ure of  all 
pay  and 
allow- 
ances 

Confine- 
ment at 
Lard  labor, 
not  to  ex- 
exceed— 

For- 
feiture 
of  two- 
thirds 

P&7 
per 
month, 
not 
to  ex- 
ceed— 

Forfeit- 
ure of 
pay, 
not 
to  ex- 
ceed— 

;o  become 
due. 

{H 

j 

| 

| 

4 

« 

85 

8Gc 

90 

93 
c 
c 

Found  drunk: 
At  formation  for  or  at— 
Athletic  exercise 

20 
6 

Drill     .                   .  

Fatigue                             .    .... 

Field  exercise 

Gallery  practice  

Guard  mounting 

Horse  exercise  

Inspection  

Instruction  
March  

Muster  

Parade 

Review 

School.                        

Stable  duty                      .           . 

Target  practice 

ft 

8 

On  duty  as— 

20 

Company  clerk  ..      ..         ..... 

Cook 

T)iruTip  room  orderly 

Farrier.     .               

Horseshoer 

Kitchen  police 

Mechanic 

Mess  sergeant  . 

Yes. 
Yes. 

fi 

Noncommissioned  officer  in  charge  of  quar- 
ters 

Saddler  

Stable  sergeant                    .  . 

Supply  sergeant 

Wagoner  .  .     ' 

Found  sleeping  or  drunk  on  post,  sentinel  
Leaving  post  before  regularly  relieved  from, 
sentinel. 
Using  a  provoking  or  reproachful  speech  or 
gesture  to  another. 
Arson 

1 

3 

3 

Yes. 

Yes. 
Yes. 

Yes. 

Yes. 
Yes. 

Yes    . 

20 
5 

10 

20 
10 

Assault: 
With  intent  to  do  bodily  harm.  . 

With  intent  to  do  bodily  harm  with  a 
dangerous  weapon,  instrument,  or  other 
thing. 
With  intent  to  commit  any  felony  except 
murder  or  rape. 
With  intent  to  commit  murder  or  rap*  
Burphiry 

Embezzlement  or  larceny: 
Of  property  of  a  value  of  $20  or  Jess  . 

6 

Of  property  of  a  value  of  $50  or  less,  and 
more  than  $20. 
Of  property  of  a  value  of  more  than  $50  ... 

Yes 

1 

Yes  

5 

... 

... 

... 

... 

280 


EXECUTIVE   OKDER. 


Offenses. 

Punishments. 

Dis- 
honor- 
able  dis- 
charge, 
forfeit- 
ure of  all 
pay  and 
allow- 
ances 
due  and 
to  become 
due. 

Confine- 
ment at 
hard  labor, 
not  to  ex- 
exceed  — 

For- 
feiture 
of  two- 
thirds 
pay 
per 
month, 
not 
to  ex- 
ceed— 

Forfeit- 
ure of 
pav, 
not 
to  ex- 
ceed— 

E 

Months. 

1 

Months. 

1 

« 

Forgery                          ...                     ........ 

Yes... 

5 

Yes  .. 

in 

Manslaughter: 
Involuntary,  in  the  commission  of  an  un- 
lawful act  not  amounting  to  a  felony,  or 
in  the  commission  of  a  lawful  act  which 
might  produce  death,  in  an  unlawful 
manner,  or  without  due  caution  or  cir- 
cumspection. 
Voluntary,  upon  a  sudden  quarrel  or  heat 
of  passion. 
Perjury  

Yes  

3 

Yes... 

10 

Yes... 

5 

Robbery  • 

Yes... 

10 

Sodomy                                                               .  . 

Yes... 

5 

Forging  or  counterfeiting  a  signature,  making 
a  false  oath,  and  offenses  related  to  either  of 
these. 
Other  cases: 
When  the  amount  involved  is  $20  or  less  . 

Yes    . 

ft 

Yes    . 

6 

When  the  amount  involved  is  $50  or  less, 
and  more  than  S20. 
When  the  amount  involved  is  more  than  $50. 
Abandoning  gnard,  by  member  thereof  

Yes  

1 

Yes  

fi 

6 

6 
3 
3 

4  busing  ft  piiblic  afii'iTval 

a 

Allowing  a  prisoner  to  receive  or  obtain  intoxi- 
cating liquor. 
Appearing  in  civilian  dothing  without  author- 
ity. 
Appearing  in  unclean  uniform,  or  not  in  pre- 
scribed uniform,  or  in  uniform  worn  other- 
wise than  in  manner  prescribed. 
Assault...  

3 

10 

i 

1 
3 

R 

Assault  and  battery      

6 

6 

Attempting  to  escape  from  confinement 

Yes 

B 

Attempting  to  strike  or  attempting  otherwise 
to  assault  a  sentinel  in  the  execution  of  his 
duty. 
Behaving  in  an  insubordinate  or  disrespectful 
manner  toward  a  sentinel  in  the  execution  of 
his  duty. 
Breach  of  restriction  (other  than  quarantine) 
to  command,  quarters,  station,  or  camp. 
Carrying  a  concealed  weapon  

6 

6 

1 

1 

1 

1 

3 
3 

3 

Committing  a  nuisance     ........... 

K 

Concealing,"  destroying   mutilating,  obliterat- 
ing, or  removing  willfully  and  unlawfully  a 
public  record,  or  taking  and  carrying  away 
a  public  record  with  intent  to  coneal,  destroy, 
mutilate,  obliterate,  remove,  or  steal  the 
same. 
Conspiring  to  escape  from  confinement  
Destroying  willfully,  public  property: 
Of  a  value  of  $20  or  less  

Yes 

^ 

Yes  

Yes 

6 

6 



ff 

Of  a  value  of  $50  or  less,  and  more  than  $20. 

Of  a  valjip  nfmoro  t^a^J  $50 

Yes 

1 

Yes 

5 

Discharging,  through  carelessness,  a  firearm.... 
Disobedience,  willful,  of  the  lawful  order  of  a 
sentinel  in  the  execution  of  his  duty. 

3 

3 

Yes  . 

1 

281 


EXECUTIVE   ORDER. 


Articles  of  War.  1 

Offenses. 

Punishments. 

Dis- 
honor- 
able  dis- 
charge, 
forfeit- 
ure of  all 
pay  and 
allow- 
ances 
due  and 
to  become 
due. 

Confine- 
ment at 
hard  labor, 
not  to  ex- 
ceed— 

For- 
feiture 
of  two- 
thirds 
Pay 
per 
month, 
not 
to  ex- 
ceed — 

Forfeit- 
ure of 
Pay, 
not 
to  ex- 
ceed- 

£ 

1 

Months. 

6 

5 

Months. 

* 
& 

c 

c 
c 

c 

Disorderly  in  command,  quarters,  station,  or 
camp. 
Disorderly  under  such  circumstances   as  to 
bring  discredit  upon  the  military  service. 

1 

1 
4 

4 

? 

2 
3 

6 

Drunk  and  disorderly  in  command,  quarters, 
station,  or  camp. 
:  Drunk  and  disorderly  under  such  circum- 
stances as  to  bring  discredit  upon  the  mili- 
tary service. 
Drunk  in  command,  quarters,  station,  or  camp. 

3 

6 

15 

Drunk  under  such  circumstances  as  to  bring 
discredit  upon  the  military  service. 

1 

3 
3 

6 
3 

3 

s 

Failing  to  obey  a  lawful  order: 

6 

3 

3 

Failing  to  pay  a  just  debt  under  such  circum- 
stances as  to  bring  discredit  upon  the  mili- 
tary service. 
False  official  report  or  statement  knowingly 
made: 
By  a  noncommissioned  officer        .  ..... 

Yes...  . 

fi 

3 

3 

1 

1 

False  swearing  

Yes  

3 

Gambling: 
By  a  noncommissioned  officer  with  a  per- 
son of  lower  military  rank  or  grade. 
In  command,  quarters,  station,  or  camp 
in  violation  of  orders. 
Indecent  exposure  of  person  ...         

3 
2 
3 



? 

3 

Introducing  a  habit-forming  narcotic  drug  into 
command,  quarters,  station,  or  camp: 
For  sale  

?es... 

? 

All  other  cases  

es  

1 

Introducing   intoxicating   liquor    into    com- 
mand, quarters,  station,  or  camp: 

fi 

6 
3 
3 

1 

All  other  cises  

3 

Loaning  money,  either  as  principal  or  agent, 
,     at  an  usurious  rate  of  interest  to  another  in 
th«  military  service. 
Loitering  or  sitting  down  on  duty  by  sentinel 

1 

Obtaining  money  or  other  property  under  false 
pretenses: 
When  the  amount  obtained  is  $20  or  less.. 

Yes... 

6 

When  the  amount  obtained  is  $50  or  less 
and  more  than  $20. 
When  the  amount  obtained  is  more  than 
$50. 
Refusing   to   submit   to   medical   or   dental 
treatment. 
Refusing  to  submit  to  a  surgical  operation 

Yes  

1 

Yes  

3 

Yes.... 

6 

Yes. 

1 

Unnatural  crimes  

Yes  

ft 

Straggling  

3 

3 

282 


EXECUTIVE  OKDER. 


Articles  of  War. 

Offenses. 

Punishments. 

Dis- 
honor- 
able  dis- 

forfeft- 
ureofall 
pay  and 
allow- 
ances 
due  and 
to  become 
due. 

Confine- 
ment at 
hard  labor, 
not  to  ex- 
ceed— 

For- 
feiture 
of  two- 
thirds 
Pay 
per 
month, 
not 
to  ex- 
ceed— 

Forfeit- 
ure of 
Pay, 
not 
to  ex- 
ceed— 

>< 

I  Months. 

£ 

3 

Months. 

I 

Striking  or  otherwise  assaulting  a  sentinel  in 
the  execution  of  his  duty. 

Yes... 

1 

Yes 

«i 

Threatening  to  strike  or  otherwise  assault  or 
using  other  threatening  language  toward  a 
sentinel  in  the  execution  of  his  duty. 
Unclean  accouterment,  arm,  clothing,  equip- 
ment, or  other  military  property,  found  with. 
Using  insulting  language  toward  a  sentinel  in 
the  execution  of  his  duty. 
Violation  of  condition  of  parole  by  general 
prisoner. 

4 

4 

1 

1 
3 

T 

1 

ARTICLE  II. 

EQUIVALENTS. 

Subject  to  the  limitations  set  forth  elsewhere  In  this  order,  sub- 
stitutions for  punishments  specified  in  Article  I  thereof  are  authorized 
at  the  discretion  of  the  court,  at  the  rates  indicated  in  the  following 
table  of  equivalents : 


Forfeiture. 

Confinement 
at 
hard  labor. 

Detention. 

Hard  labor 
without 
confinement. 

1  day's  pay. 

Iday. 

1$  days'  pay. 

li  days. 

ARTICLE  III. 

GENERAL  LIMITATIONS. 

SECTION  1.  A  court  shall  not,  by  a  single  sentence  which  does  not 
include  dishonorable  discharge,  adjudge  against  a  soldier: 

(a)  Forfeiture  of  pay  at  a  rate  greater  than  two-thirds  of  his  pay 
per  month. 

(&)  Forfeiture  of  pay  in  an  amount  greater  than  two-thirds  of  his 
pay  for  six  months. 

(c)  Confinement  at  hard  labor  for  a  period  greater  than  six  months. 

SEC.  2.  A  court  shall  not,  by  a  single  sentence,  adjudge  against  a 
soldier : 


283 


EXECUTIVE  ORDER. 

(a)  Detention  of  pay  at  a  rate  greater  tban  two-thirds  of  his 
pay  per  month. 

(6)  Detention  of  pay  in  an  amount  greater  than  two-thirds  of  his 
pay  for  three  months. 

<c)  Hard  labor  without  confinement  for  a  period  greater  than 
three  months. 

ARTICLE  IV. 

NONCOMMISSIONED   OFFICERS. 

SECTION  1.  No  court  shall  adjudge  confinement  at  hard  labor  or 
hard  labor  without  confinement  against  a  noncommissioned  officer 
unless  in  the  same  sentence  reduction  to  the  grade  of  private  shall 
aLso  be  adjudged. 

SEC.  2.  Upon  the  conviction  of  a  noncommissioned  officer  or  a  pri- 
vate first  class,  of  an  offense  or  offenses  for  which  confinement  at 
hard  labor  for  a  period  of  more  than  five  days,  authorized  substitu- 
tions considered,  may  be  adjudged  the  court  may,  in  addition  to  the 
punishments  otherwise  authorized,  adjudge  reduction  to  the  grade  of 
private, 

ARTICLE  V. 

PREVIOUS   CONVICTIONS. 

SECTION  1.  A  general  or  special  court  shall,  upon  conviction  of  the 
accused,  be  opened  and  shall  thereupon  ascertain  whether  there  is 
evidence  of  a  previous  conviction  or  convictions,  which  has  been 
referred  to  the  court  by  the  convening  authority,  and,  if  there  be  such 
evidence,  shall  receive  it. 

SEC.  2.  A  court  may,  under  the  authority  contained  io  section  l  of 
this  article,  receive  evidence,  In  the  cases  of  officers,  warrant  officers, 
members  of  the  Army  Nurse  Corps,  and  field  clerks,  only  of  convictions 
by  court-martial  of  an  offense  or  offenses  committed  by  the  accused 
during  his  status  as  such  officer,  warrant  officer,  member  of  the  Army 
Nurse  Corps,  or  field  clerks,  and  within  three  years  next  preceding 
the  commission  by  him  of  an  offense  of  which,  he  stands  convicted 
before  the  court.  In  the  case  of  soldiers  it  will  be  limited  to  that 
pertaining  to  convictions  by  courts-martial  of  an  offense  or  offenses 
committed  during  his  current  enlistment  and  within  one  year  next 
preceding  the  commission  by  him  of  an  offense  of  which  he  stands 
convicted  before  the  court.  These  convictions  may  be  proved  only  by 
the  records  of  the  trials  in  which  they  were  had,  or  by  duly  authenti- 
cated copies  of  such  records,  or  by  duly  authenticated  copies  of  orders 
promulgating  such  convictions. 

ARTICLB  VL 

DISHONORABLE   DISCHARGE. 

SECTION  L.  A  court  may,  upon  his  conviction  of  an  offense  or 
offenses  for  none  of  which  dishonorable  discharge  and  forfeiture  of 


EXECUTIVE   ORDER. 

all  pay  and  allowances  due  and  to  become  due  Is,  In  Article  I  of  this 
order  or  by  the  custom  of  the  service,  authorized,  upon  proof  of  five 
or  more  previous  convictions,  adjudge  against  a  soldier,  in  addition 
to  the  confinement  at  hard  labor  without  substitution  authorized  in 
said  article  or  by  the  custom  of  the  service  for  the  offense  or  offenses 
of  which  he  is  convicted,  dishonorable  discharge  and  forfeiture  of  all 
pay  and  allowances  due  and  to  become  due,  and,  in  any  such  case  in 
which  such  confinement  so  authorized  is  less  than  three  months,  a 
court  may  adjudge,  in  addition  to  such  discharge  and  forfeiture, 
confinement  at  hard  labor  for  three  months. 

SEC.  2.  A  court  may,  upon  his  conviction  upon  one  arraignment  of 
two  or  more  offenses  for  none  of  which  dishonorable  discharge,  con- 
finement at  hard  labor  and  forfeiture  of  all  pay  and  allowances  due 
and  to  become  due  is  in  Article  I  of  this  order  or  by  the  custom  of 
the  service  authorized,  but  the  aggregate  term  of  confinement  at  hard 
labor  for  which,  as  authorized  in  said  article  or  by  the  custom  of  the 
service,  without  substitution,  equals  or  exceeds  six  months,  adjudge 
against  a  soldier,  in  addition  to  the  confinement  at  hard  labor,  without 
substitution^  authorized  in  said  article  or  by  the  custom  of  the  service 
for  the  offense  or  offenses  of  which  he  is  convicted,  dishonorable  dis- 
charge aacl  forfeiture  of  all  pay  and  allowances  due  and  to  become  due, 

ARTICLE  VII. 

EFFECT   AND   APPUCATIQN    OF   THIS    OEDEB. 

SECTION  1.  This  order  prescribes  the  maximum  limit  of  punishment 
for  each  of  the  offenses  therein  specified,  and  thus  indicates  an  ap- 
propriate punishment  for  an  offense  which  is  attended  by  aggravating 
circumstances.  Evidence  of  previous  convictions  admitted  under  Ar- 
ticle V  of  this  order  may  always  be  considered  in  determining  the 
proper  measure  of  punishment ;  but  evidence  of  previous  convictions  of 
offenses  materially  less  grave  than  the  offense  or  offenses  for  which 
sentence  is  to  be  adjudged  is  not  to  be  regarded  as  in  itself  justifying 
a  sentence  of  maximum  severity.  In  every  case  in  which  the  pre- 
scribed or  customary  maximum  penalty  exceeds  confinement  at  hard 
labor  or  forfeiture  of  pay  for  10  days  and  in  which  the  offense  is 
not  attended  by  aggravating  circumstances  the  punishment  will  be 
graded  down  according  to  the  circumstances  of  the  offense ;  and  if 
for  any  reason  the  court-martial  fails  so  to  grade  down  the  punish- 
ment, it  will  be  the  duty  of  the  reviewing  authority  to  do  so. 

SEC.  2.  Offenses  not  herein  provided  for  remain  punishable  as  au- 
thorized by  statute  or  the  custom  of  the  service ;  but,  in  cases  for  which 
maximum  punishments  are  not  prescribed,  courts  will  be  guided  by  the 
limits  of  punishment  prescribed  for  closely  related  offenses. 

SEC.  3.  Dishonorable  discharge,  in  itself  a  severe  punishment,  should 
be  adjudged  and  approved  only  when  it  is  clear  that  the  accused  should 
be  separated  from  the  service  or  that  he  should  be  required  to  undergo 
a  period  of  reformatory  discipline  before  he  can  again  be  permitted  to 


EXECUTIVE   ORDER. 

serve  In  an  organization  composed  of  honorable  men.  When  the  ac- 
cused is  relatively  young  and  his  record,  except  for  the  offense  of 
which  he  stands  convicted,  is  good,  the  reviewing  authority  should,  in 
the  exercise  of  his  sound  discretion,  suspend  the  execution  of  the  dis- 
honorable discharge,  to  the  end  that  the  offender  may  have  an  oppor- 
tunity to  redeem  himself  in  the  military  service;  but  he  should  not 
suspend  the  execution  of  the  dishonorable  discharge  in  any  case  of 
conviction  of  an  offense  involving  that  degree  of  moral  turpitude  which 
disqualifies  for  further  military  service. 

SEC.  4.  The  reviewing  authority  should  suspend  the  whole  of  a 
sentence  when  it  appears  to  him  that  such  action  will  promote  the  dis- 
cipline of  his  command. 

ARTICLE  VIII. 

ADMINISTRATIVE  RULES. 

SECTION  1.  Hard  labor  without  confinement,  when  imposed  as  a  pun> 
ishment,  shall  be  performed  in  addition  to  other  duties  which  fall  to 
the  soldier,  and  no  soldier  shall  be  excused  or  relieved  from  any  mili- 
tary duty  for  the  purpose  of  performing  hard  labor  without  confine- 
ment which  has  been  imposed  as  a  punishment,  but  a  sentence  imposing 
such  punishment  shall  be  considered  as  satisfied  when  the  soldier  shall 
have  performed  hard  labor  during  available  time  in  addition  to  per- 
forming his  military  duties. 

SEC.  2.  Pay  detained  pursuant  to  the  sentence  of  a  court-martial 
will  be  detained  by  the  Government  until  the  soldier  is  discharged 
from  the  service  or  mustered  out  of  active  Federal  service. 

ARTICLE  IX. 

DATE   ON    WHICH    OPERATIVE. 

This  order  shall  become  operative  on  February  4,  1921,  as  to 
offenses  committed  on  and  after  that  date  and  as  to  criminal  acts 
committed  prior  to  that  date  whose  maximum  punishment  was  not 
prescribed  in  the  Executive  order  of  December  15,  1916.  The  Execu- 
tive order  of  December  16,  1916,  published  in  the  Manual  for  Courts- 
Martial,  1917,  prescribing  limits  of  punishment,  shall  remain  operative 
as  to  offenses  committed  before  February  4, 1921,  except  as  to  criminal 
acts  whose  maximum  punishment  has  been  decreased  by  this  order, 
which  will  not  be  followed  by  severer  punishment  than  is  hereinbefore 
prescribed. 

WOODROW  WILSON. 

THE  WHITE  HOUSE, 

December  10,  1920. 


286 


CHAPTER  XIV. 

COURTS-MARTIAL—PROCEDURE  OF  SPECIAL  AND 
SUMMARY  COURTS  AND  PROCEDURE  ON  REVI- 
SION. 


Section  I.  courts-martial :  -age. 

350.  Procedure - 287 

Section  II.  Summary  courts-martial: 

351.  Procedure  (a)  to  (;) 287 

Section  III.  Procedure  «n  revision: 

352.  Of  general  or  special  courts-martial 289 

353.  Of  summary  courts-martial 290 


SECTION  I. 
SPECIAL  COURTS-MARTIAL. 

350.  PROCEDURE. — The   procedure   of   and  before  special 
courts-martial  will,  so  far  as  practicable,  be  identical  with 
that  prescribed  for  general  courts-martial. 

SECTION  II. 
SUMMARY  COURTS-MARTIAL. 

351.  PROCEDURE. — (a)  The  summary  court  will  be  opened 
at  a  stated  hour  daily,  except  Sundays,  for  the  trial  of  such 
cases  as  have  been  properly  referred  to  it  for  trial.    Trials 
will  be  had  on  Sunday  only  when  the  exigencies  of  the 
service  make  it  necessary. 

(b)  The  summary  court  will  at  the  beginning  of  each 
trial,  in  the  order  of  such  trial,  give  to  and  enter  in  the 
proper  place  on  the  charges  in  the  case  a  serial  number. 

(c)  The  procedure  of  and  before  summary  courts-martial 
will,  so  far  as  practicable,  be  identical  with  that  prescribed 
for  general  courts-martial.    In  the  trial  of  a  case  the  sum- 
mary court  represents  both  the  Government  and  the  accused. 
He  will  see  to  it  that  the  interests  of  both  are  fully  con- 
served. 

21358°— 20 19 

287 


Tf  351  CHAPTEK  xrv. 

(d)  When  the  accused  pleads  guilty  he  will — 

(1)  Explain  to  him  (a)  the  elements  constituting  the 
offense  to  which  he  has  pleaded  guilty,  and  (£>)  the  max- 
imum punishment  therefor. 

(2)  Ask  him  whether  he  fully  understands  (a)  that 
by  pleading  guilty  thereto  he  admits  all  the  elements 
of  the  crime  or  offense,  and  (£>)  that  he  may  be  punished 
as  explained  to  him.     (For  form  see  Appendix  9,  infra.) 
The  report  of  trial  will  show  that  such  explanation  was 
made,     (See  Appendix  12,  infra.) 

In  any  such  case  he  will  also,  in  the  manner  below  stated, 
make  such  impartial  investigation  as  the  doing  of  justice 
may  appear  to  require. 

(e)  In  the  absence  of  a  plea  of  guilty  he  will  make  a  full, 
thorough,  and  impartial  investigation  of  both  sides  of  the 
entire  matter  before  him.    On  behalf  of  the  accused  he  will 
obtain  the  attendance  of,  swear,  and  examine  such  witnesses, 
and  will  obtain  such  other  evidence,  documentary  and  other, 
as  may  tend  to  disprove  or  negative  guilt  of  such  allega- 
tions, or  explain  the  acts  or  omissions  charged,  or  show  ex- 
tenuating circumstances  or  establish  good  character.     He 
will  permit  the  accused  fully  to  examine  all  witnesses  that 
appear,  and  will,  to  the  fullest  extent,  aid  him  in  making 
such  examination.    He  will,  in  every  proper  way,  encourage 
and  aid  the  accused  in  making  his  defense.    In  all  cases  he 
will  extend  to  the  accused  full  opportunity  to  testify  in 
his  own  behalf  and  to  make  a  statement  in  denial,  in  ex- 
planation, or  in  extenuation,  and  will,  before  arriving  at  a 
finding,  assure  himself,  by  inquiry  of  the  accused,  that  he 
has  no  further  testimony  to  offer  and  no  further  statement 
to  make. 

(f )  If  the  accused  does  not  testify  or  make  any  statement  in 
his  own  behalf,  the  summary  court  will  explain  to  him  that  he 
may  testify  in  hi*  own  behalf  if  he  so  desire,  or  may  make  an  un- 
sworn statement  to  the  court  in  denial,  in  explanation,  or  in  ex- 
tenuation of  the  offense  with  which  lie  stands  charged.     (See 
Porm  4,  Appendix  9.)    The  report  of  trial  will  show  that  such 
explanation  was  made.    (Par.  215,  infra.) 


288 


COURTS-MARTIAL, — PROCEDURE   OF   COURTS,     ^f    352 

(g)  Having  done  so,  he  will,  as  soon  as  the  trial  is  con- 
cluded, arrive  at  his  findings  and  record  them  in  the  proper 
place  on  the  charges. 

(h)  In  the  event  of  conviction  he  will  consider  the  evi- 
dence of  previous  convictions,  if  any,  referred  to  him. 

(i)  In  any  case  of  conviction  he  will,  as  soon  as  trial  is 
concluded,  impose  sentence  and  record  it  in  the  proper  place 
upon  the  charges. 

(j)  In  the  event  of  a  finding  of  not  guilty  of  all  the 
charges  and  specifications  he  will  record  an  acquittal  instead 
of  a  sentence,  and  immediately  announce  it  in  open  court. 
(A.  W.  29.) 

(k)  Having  recorded  his  findings  and  an  acquittal  or  sen- 
tence, he  will  subscribe  his  name,  rank,  and  organization 
as  summary  court,  and  then  without  delay  transmit  the 
record  of  trial  to  the  appointing  authority. 

SECTION  III. 
PROCEDURE  ON  REVISION. 

352.  OF  GENERAL  OR  SPECIAL  COURTS-MARTIAL. — The  pro- 
cedure of  general  or  special  courts-martial  when  reconvened 
for  the  purpose  of  revising  their  action  or  correcting  their 
records  will  in  general  be  as  indicated  by  the  form  of  record 
of  proceedings  on  revision.  (See  Appendix  10  and  par.  364, 
infra.)  The  members  of  the  court  who  participated  in  the 
findings  and  sentence,  together  with  the  trial  judge  advocate 
and  assistant  trial  judge  advocate,  if  any,  and — except  in 
those  rare  cases  where  a  sentence  which,  under  paragraph  332a, 
supra,  was  not  announced  in  open  court  is  directed  to  be  recon- 
sidered by  the  court — the  defense  counsel  of  the  court  and  as- 
sistant defense  counsel,  if  any,  will  assemble  and  the  court 
will  meet.  It  is  not  ordinarily  necessary  that  the  accused 
or  his  individual  counsel,  if  any,  be  present,  but  except  in  rare 
cases  there  is  no  objection  to  their  presence,  and  there  may 
be  cases  in  which  the  presence  of  the  accused  and  of  his  indi- 
vidual counsel,  if  any,  should  be  required  by  the  court.  The 
trial  judge  advocate  will  read  to  the  court  the  indorsement 
of  the  appointing  authority  returning  the  record  and  di- 


289 


If    353  CHAPTER  XIV. 

recting  the  reconvening,  or  if  the  record  of  trial  by  a 
special  court-martial  has  been  returned  to  him  orally  for 
revision,  may  state  briefly  to  the  court  the  views  of  the 
appointing  authority  as  communicated  to  him.  The  court 
is  then  closed,  considers  and  takes  action  upon  the  matter 
before  it,  is  opened,  and  adjourns.  As  the  action  so  taken 
is  entirely  corrective,  a  case  will  not  be  reopened  by  the 
calling  or  recalling  of  witnesses  or  otherwise. 

"No  authority  shall  return  a  record  of  trial  to  any  court- 
martial  for  reconsideration  of — 

(a)  An  acquittal;  or 

(b)  A  finding  of  not  guilty  of  any  specification;  or 

(c)  A  finding  of  not  guilty  of  any  charge,  unless  the 

record  shows  a  finding  of  guilty  under  a  specifica- 
tion laid  under  that  charge,  which  sufficiently 
alleges  a  violation  of  some  article  of  war;  or 

(d)  The  sentence  originally  imposed,  with  a  view  to  in- 

creasing its  severity,  unless  such  sentence  is  less 
than  the  mandatory  sentence  fixed  by  law  for  the 
offense  or  offenses  upon  which  a  conviction  has 
been  had. 

And  no  court-martial,  in  any  proceedings  on  revision,  shall  re- 
consider its  findings  or  sentence  in  any  particular  in  which  a 
return  of  the  record  of  trial  for  such  reconsideration  is  herein- 
before prohibited."  (A.  W.  40.) 

353.  OF  SUMMARY  COURTS-MARTIAL. — What  has  been  said 
in  respect  to  the  procedure  on  revision  by  general  or  special 
courts-martial  will,  so  far  as  applicable,  govern  such  proce- 
dure by  summary  courts-martial.  (See  also  par.  365,  infra.) 


290 


CHAPTER  XV. 
COURTS-MARTIAL—RECORDS  OF  TRIAL. 


Section  I.  General  courts-martial:  Page. 

354.  Record  required — How  authenticated 291 

355.  What  the  record  is  and  by  whom  prepared 292 

355a.  Carbon  copy  of  the  record 292 

356.  Separate  record 292 

357.  Contents  of  record 292 

(a)   In  general 292 

(&)  In  detail 293 

(c)  Record  of  revision 300 

(d)  Clemency  recommendation 800 

Section  II.  Special  courts-martial: 

358.  Form  and  substance,  (a)  to  (h) 800 

359.  Number  of  copies 801 

360.  Not  indexed— Exceptions 301 

361.  Briefed 802 

361a.  Recording  testimony . 802 

362.  Bound _ 302 

Section  III.  Summary  courts-martial: 

363.  Form  and  substance 302 

Section  IV.  Correction  of  records  of  trial: 

364.  Records  of  general  or  special  courts-martial 802 

365.  Records  of  summary  courts-martial 303 

Section  V.  Disposition  of  records  of  trial: 

366.  By  trial  judge  advocate 303 

(a)  Original  record 803 

(&)  Carboncopy 803 

867.  By  appointing  authority 304 

(a)  Records  of  trial  by  general  courts-martial 304 

(&)  Records  of  trial  by  special  courts-martial 304 

(c)  Records  of  trial  by  summary  courts-martial —  805 

(d)  Reports  of  trial  by  summary  courts-martial —  305 
Section  VI.  Loss  of  records  of  trial: 

368.  Action  to  be  taken__  805 


SECTION  I. 
GENERAL  COURTS-MARTIAL. 

354.  RECORD  REQUIRED — How  AUTHENTICATED. — Each  gen- 
eral court-martial  shall  keep  a  separate  record  of  its  pro- 
ceedings in  the  trial  of  each  case  brought  before  it,  and  such 


291 


Tf    355  CHAPTER  XV. 

record  shall  be  authenticated  by  the  signature  of  the  presi- 
dent and  the  trial  judge  advocate,  bat  in  case  the  record  can 
not  be  authenticated  by  the  president  and  the  trial  judge  advo- 
cate, by  reason  of  the  death,  disability,  or  absence  of  either 
or  both  of  them,  it  shall  be  signed  by  a  member  in  lieu  of  the 
president,  and  by  an  assistant  trial  judge  advocate,  if  there  is 
one,  in  lieu  of  the  trial  judge  advocate,  otherwise  by  another 
member  of  the  court.  (A.  W.  33.) 

355.  WHAT  THE  RECORD  Is  AND  BY  WHOM  PREPARED. — The 
legal  record  of  a  court-martial  is  that  record  which  is  finally 
approved  and  adopted  by  the  court  as  a  body  and  authenti- 
cated by  the  signatures  of  its  president  and  the  trial  judge 
advocate.     The  record  is  prepared  by  the  trial  judge  advo- 
cate under  the  direction  of  the  court,  and  in  consultation  with 
the  defense  counsel  of  the  court  te  whom  it  is  subriitted  (except 
finding*  and  sentence-  in  cases  where  the  same  are  not  an- 
nounced) for  examination  before  signature,  but  the  court  as  a 
whole  is  responsible  for  it,  and  the  instrument  which  it 
approves  as  such  is  its  record,  however  the  same  may  have 
been  made  up.     It  is  immaterial  to  the  sufficiency  of  a  record 
whether  the  same  was  kept  or  written  by  the  trial  fudge 
advocate   or  by   a   clerk  or   a   reporter   acting   under  his 
direction. 

355a.  Carbon  Copy  of  the  BecorxL — Whenever  a  record  of  a 
trial  by  general  court-martial  is  to  be  typewritten  by  a  reporter 
(see  Par.  117,  swipra),  a  carbon  copy  will  always  be  jnrepared,  and, 
if  not  desired  by  the  accused:  (see  Par.  3'86  (b),  infra),  will  be 
forwarded,  with,  the  record,  to  the  reviewing  authority. 

356.  SEPARATE  HECORD. — Where  several  cases  are  tried  by 
the  same  court  the  record  of  each  case  should  not  only  be 
complete  and  independent  in  itself  and  as  much  an  entirety, 
both  in  form  and  in  substance,  as  if  it  were  the  only  case 
tried,  but  should  contain  all  that  is  essential  to  an  original 
and  independent  official  paper,  and  should  be  so  perfected 
as  to  leave  no  material  detail  to  be  supplied  from  any  pre- 
vious or  other  record.    Where  sentence  is  pronounced  the 
record  should  contain  everything  necessary  to  sustain  it  in 
fact  and  in  law. 

357.  CONTENTS  OF  BECom?. —  (&)  In  G-eneral. — The  record 
of  proceedings  of  a  general  court-martial  will  in  each  case 

282 


COURTS-MARTIAL — RECORDS   OF  TRIAL.          ^    357 

show  that  all  statutory  requirements  incident  to  that  case 
have  been  complied  with ;  will  state  a  complete  history  of  the 
proceedings,  regular  and  irregular,  had  in  open  court  in  that 
case;  and  will  set  forth  the  material  conclusions  arrived  at 
in  both  open  and  closed  sessions.  The  only  acts  of  the  court 
or  members  not  properly  stated  or  set  forth  in  the  record 
of  trial  are  the  discussions,  votes,  etc.,  had  while  the  court 
was  closed  for  deliberation  upon  a  challenge,  or  upon  the 
findings  or  sentence.  Such  discussions,  etc.,  are  no  part  of 
the  formal  record,  and,  as  to  votes  and  opinions  of  particular 
members  upon  a  challe-nge  or  upon  the  Sndings  or  sentence,  a 
statement  of  these  is  precluded  by  A.  W.  19.  It  is,  in  fact, 
only  the  result  of  a  deliberation  in  closed  session  that  is  to 
be  entered  upon  the  record ;  except  that  it  must  appear  there- 
from that  such  result  was  reached  by  the  concurrence  of  the 
number  of  votes  required,  as  the  ease  may  be,  by  the  forty-third 
article  of  war. 

(b)  In  Detail. — The  record  of  proceedings  in  each  case 
will  show,  among  other  things,  each  in  its  proper  place : 

1.  A  brief  of  itself  in  the  prescribed  form.     (See  Appendix 
10,  infra.) 

2.  An  index  of  itself  in  the  prescribed  form.     (See  Appen- 
dix 10,  infra.) 

3.  Whether  a  carbon  copy  of  the  record  of  trial  was  pre- 
pared and,  if  so,  the  disposition  made  thereof.    (See  pars.  117 
and  355.a,  supra,  and  366  (b),  infra.) 

4.  The  place  and  date  of  each  meeting  of  the  court. 

5.  The  fact  and  hour  of  each  meeting. 

6.  The  number,  date,  source,  and  a  copy  of  the  order  ap- 
pointing the  court,  and   of   each   amendatory   order,  each 
stated  at  the  proper  place  in  the  record  of  trial. 

7.  The  fact  of  the  presence  und  the  name,  rank,  and  or- 
ganization of  each  member,  including   (and  so  designating) 
the  law  member,  if  present,  the  trial  judge  advocate,  the  as- 
sistant trial  judge  advocate,  the  defense  counsel,  the  assistant 
defense  counsel,  and  the  individual  counsel  for  the  accused,  if 
there  be  one,  present  at  the  assembling  of  the  court,  and  at 
any  proceedings  in  revision. 

8.  The  fact  of  the  presence  and  the  name,  rank,  and  or- 
ganization of  each  new  member  (including  law  member),  new 

293 


^f    357  CHAPTER  XV. 

trial  judge  advocate  or  assistant  trial  judge  advocate,  or  new 
defense  counsel  or  assistant  defense  counsel,  who  begins  to 
participate  therein,  together  with  citation  of  the  authority 
for  his  so  doing. 

9.  The  fact  of  the  absence  and  the  name,  rank,  and  or- 
ganization of  each  member,  including  the  law  member,  and  of 
the  trial  judge  advocate  or  assistant  trial  judge  advocate,  or 
defense  counsel  or  assistant  defense  counsel,  absent  at  the  as- 
sembling of  the  court  or  at  any  reassembly  after  recess  or 
adjournment,  or  at  any  proceedings  in  revision,  together 
with  a  statement  of  the  reason  for  such  absence. 

10.  That  the  accused  was  given  opportunity  to  introduce 
individual  counsel,  and  the  action  thereon. 

11.  That  the  defense  counsel  and  assistant  defense  counsel  (or 
at  least  one  of  them  at  all  times)  were  present  during  all  the 
open  sessions  of  the  court  in  the  case  (unless  excused  at  the  ex- 
press request  of   the   accused,   under   par.    107  (b),   supra,   in 
which  case  that  fact  will  be  stated  in  the  record) ;  and  that  the 
accused  and  his  individual  counsel,  if  any,  were  present  dur- 
ing all  the  open  sessions  of  the  court  in  his  case   (except 
during  proceedings  in  revision  in  which  it  will  be  shown 
whether  or  not  they  were  present;  and,  in  those  rare  cases  in 
which,  under  paragraph  352  supra,  their  presence  is  improper 
during  revision  proceedings,  the  record  will  show  their  absence 
during  such  proceedings). 

12.  The  name  (and  if  in  the  military  service,  grade,  and  or- 
ganization) of  each  person  who  acted  as  reporter  during  any 
part  of  the  trial,  and  that  each  such  person  was  sworn. 

13.  The  name,  rank,  and  organization  of  each  member 
present  who,  during  the  trial,  was  challenged  by  either  party, 
or  who  announced  himself  as,  or  was  alleged  to  be,  ineligible 
to  sit  as  a  member,  together  with  the  alleged  reason  therefor, 
and  the  action  had  thereon. 

14.  The  name  of  each  person,  if  any,  who  acted  as  inter- 
preter during  any  part  of  the  trial,  and  that  each  such 
person  was  sworn. 

15.  That  the  accused  was  informed  of  his  right  to  demand 
a  copy  of  the  record  of  his  trial,  and  was  asked  whether  or 
not  he  desired  a  copy  thereof,  together  with  his  answer 
thereto. 

294 


COURTS- MARTIAL — RECORDS   OF  TRIAL.          ^f    357 

16.  That  the  order  appointing  the  court  and  each  amend- 
atory order  was  read  to  the  accused  in  court,  and  that  he 
was  given  opportunity  to  challenge  each  member  of  the 
court   (including  an  opportunity  to  exercise  his  right  to  one 
peremptory  challenge  in  accordance  with  the  provisions  of  A.  W. 
18)  who  sat  as  such  during  any  part  of  the  trial  in  his  case, 
and  the  action  had  thereon. 

17.  That  each  member  of  the  court  who  sat  as  such  during 
any  part  of  the  trial  of  the  case  and  each  trial  judge  advo- 
cate and  assistant  trial  judge  advocate  who  appeared  before 
the  court  in  the  case  was  sworn. 

18.  The  several  charges  and  specifications  upon  which  the 
accused  was  arraigned,  including  the  signature  and  the  oath 
thereto,  by  the  person  preferring  them,  required  by  A.  W.  70. 

19.  The  name,  grade,  and  organization  of  the  person  who 
subscribed  the  charges  and  swore  to  them. 

20.  The  pleas  of  the  accused  to  the  several  specifications 
and  charges  upon  which  he  was  arraigned. 

21.  In  a  proper  case,  that  the  law  member  if  present,  or 
otherwise  the  president,  advised  the  accused  of  his  legal  right 
to  plead  the  statute  of  limitations. 

22.  That  after  a  plea  of  guilty  the  law  member  if  present, 
or  otherwise  the  president,  in  substance  in  the  form  prescribed 
in  Appendix  9,  infra — 

(a)  Explained  to  the  accused  (1)  the  elements  con- 

stituting the  offenses  to  which  he  pleaded 
guilty;  and  (2)  the  maximum  punishment  for 
each  such  offense ;  and  also 

(b)  Asked  the  accused  if  he  fully  understood  (1)  that 

by  pleading  guilty  thereto  he  admitted  all  the 
elements  of  the  crime  or  offense;  and  (2)  that 
he  may  be  punished  as  explained  to  him. 

23.  The  answers  of  the  accused  thereto,  and  the  action,  if 
an}*,  had  thereon. 

24.  That  the  trial  judge  advocate  read  to  the  court  the 
paragraphs  of  the  Manual  for  Courts-Martial  that  set  out 
the  gist  of  the  offense  or  offenses  charged  (stating  specifically 
which  paragraphs  and  parts  of  paragraphs  were  so  read). 

25.  That  the  several  witnesses  were  sworn. 


295 


^[357  CHAPTER  XV. 

26.  In  a  proper  case,  that  the  law  member  if  present,  or 
otherwise  the  president,  advised  a  witness  ignorant  of  his 
rights  that  he  might  decline  to  answer  any  question  where 
his  answer  might  tend  to  incriminate  him,  or  to  answer  any 
question  not  material  to  the  issue  when  such  answer  might  tend 
to  degrade  him.     (A.  W.  24.) 

27.  That  each  witness  recalled  to  testify  was  cautioned, 
upon  being  so  recalled,  that  he  was  still  under  oath. 

28.  That,  if  the  accused  was  sworn  as  a  witness,  he  was 
so  sworn  at  his  own  request. 

29.  The  questions  propounded  and  the  answers  given  by 
each  of  the  several  witnesses,  as  nearly  as  possible  in  the 
language  used. 

30.  That  the  accused  was  given  full  opportunity  to  ex- 
amine each  witness  called  or  recalled  for  the  defense,  and  to 
cross-examine  each  witness  called  or  recalled  by  the  prosecution 
or  by  the  court. 

31.  The  fact  of  the  introduction  of  each  deposition  and 
other  paper  received  in  evidence  by  the  court  and  what  parts 
were  offered  by  either  side,  or  were  not  offered,  or  were  ex- 
cluded, and  that  it  is  appended  to  the  record  properly  marked. 

32.  The  exact  and  entire  text  read  to  the  court  by  the 
prosecution  or  defense  from  any  publication,  together  with 
the  title  of  the  publication,  the  edition  thereof,  and  the 
proper  page  (or  paragraph  or  section)  number. 

33.  In  a  proper  case,  that  the  accused  had  no  testimony, 
or  no  further  testimony,  to  offer,  or  no  statement  to  make, 
or  both. 

34.  That  when  the  accused  did  not  testify  or  make  a 
statement  the  law  member  if  present,  or  otherwise  the  presi- 
dent, explained  to  him  in  open  court  in  substantially  the  form 
prescribed  in  Appendix  9,  infra,  that  he  might  testify  in  his 
own  behalf  if  he  so  desired;  or  might,  without  being  sworn, 
make  a  statement  in  denial,  in  explanation,  or  in  extenuation ; 
or  might  do  both. 

35.  Each    motion,    objection,    argument,    statement,    etc., 
made  in  open  court,  and  the  action,  if  any,  had  thereon. 

36.  The  fact  of  each  closing  of  the  court. 


29G 


COURTS-MARTIAL — RECORDS   OF  TRIAL.          ^f    357 

37.  The  fact  of  each  opening  of  the  court,  and  that  the 
members  (including;  and  so  designating,  the  law  member),  trial 
judge  advocate,  assistant  trial  judge  advocate,  defense  counsel, 
assistant  defense  counsel,  the  accused  and  his  individual  coun- 
sel,- if  any,  and  tke  reporter,  if  any,  were  present  when  the 
court  was  opened  (without,  however,  repeating  their  names,  in 

any  reopening,  except  where  necessary  because  of 
or  absences). 

38.  If  a  note  was  made  of  recess  taken,  that  the  members 
(including,  and  so  designating,  tfee  law  member) ,  tbe  trial  judge 
advocate,  assistant  trial  judge  advocate,  defense  counsel,  as- 
sistant defeBse  counsel,  the  accused  and  his  individual  counsel, 
an-d  the  reporter,  if  any,  were  present  when  the  court  again 
proceeded  to  business* 

39.  In  a  joint  trial,  that  each  and  every  one  of  the  several 
accused  was  accorded  each  and  every  right  and  privilege 
he  would  enjoy  if  tried  separately;  and,  as  to  each  accused,, 
proper  findings  and  sentence  or  acquits!.      (The  erf  here 
sought,  however,  will,  so  far  as  practicable,  be  attained  by 
the  use  oi  appropriate  general  language  without  unduly 
burdening  tbe  reeord  with  repetitions.) 

40.  The  findings  on  each  of  the  several  specifications  and 
charges  not  disposed  of  as  a  result  of  a  special  plea. 

41.  The  fact  that  each  finding,  as  to  each  speeiieation,  and 
also  as  to  each  charge,  was  determined  by  secret  written  ballot. 
(A.  W.  31.) 

42.  That,,  after  the  findingsy  the  court  was  opened  lor  the 
purpose  of  receiving  evidence  of  previous  convictions,  and 
its  action. 

43.  That  the  statement  of  accused's  service,  as  shown  on  the 
clarge  sheet,  was;  thereupon  read  to  him  by  the  trial  judge  advo- 
cate, and  he  was  asked  whether  it  was  correct,  or  whether  fee  bad 
any  statement,  ar  correction,  to  make  concerning  it,  and  his 
answers  thereto, 

44.  In  case  of  receipt  by  th«  court  of  evidence  of  previous 
convictions,  that  a  copy  of  each  is  appended  to  the  record, 
properly  marked. 

45.  In  case  of  the  receipt  of  evidence  of  previous  convictions, 
that  the  accused  was  asked  whether  the  evidence  of  such- 


297 


^[    357  CHAPTER  XV. 

previous  convictions  was  correct,  and  whether  he  had  any 
statement  to  make  in  explanation  or  extenuation  thereof,  or  in 
relation  thereto,  and  his  answers. 

46.  The  sentence,  acquittal,  or  other  action  finally  taken, 
and  that  the  same  were  (or  were  not)  announced  in  open  court; 
and,  if  not  so  announced,  the  reasons  therefor. 

47.  In  case  of  conviction  of  an  offense  for  which  the  death 
penalty  is  made  mandatory  by  law,  that  all  of  the  members 
of  the  court  present  at  the  time  the  vote  was  taken  concurred 
in  such  findings  of  guilty,  both  as  to  the  specification  and  also 
as  to  the  charge.     (A.  W.  43.) 

48.  As  to  every  other  finding  of  guilty,  whether  upon  a  specifi- 
cation or  a  charge,  that  two-thirds  of  the  members  of  the  court 
present   at   the   time   the   vote   was  taken   concurred   therein. 
(A.  W.  43.) 

49.  In  case  of  a  sentence  to  suffer  death,  that  all  of  the 
members  of  the  court  present  at  the  time  the  vote  was  taken 
concurred  in  the  sentence.     (A.  W.  43.) 

50.  In  case  of  sentence  of  life  imprisonment  or  to  confinement 
for  more  than  10  years,  that  three-fourths  of  the  members  of  the 
court  present  at  the  time  the  vote  was  taken  concurred  therein. 

51.  In  case  of  any  sentence  other  than  death,  life  imprison- 
ment, or  confinement  for  more  than  10  years,  that  two-thirds  of 
the  members  of  the  court  present  at  the  time  the  vote  was  taken 
concurred  therein.     (A.  W.  43.) 

52.  The  adjournment. 

53.  That  the  trial  judge  advocate,  or  in  a  proper  case,  the 
assistant  trial  judge  advocate,  subscribed  each  day's  pro- 
ceedings. 

54.  That  the  president  and  the  trial  judge  advocate;  or,  in 
a  proper  case,  the  president  and  an  assistant  trial  judge  ad- 
vocate; or,  in  a  proper  case,  a  member  in  lieu  of  the  president, 
and  the  trial  judge  advocate;  or,  in  a  proper  case,  a  member  in 
lieu  of  the  president,  and  the  assistant  trial  judge  advocate;  or, 
in  a  proper  case,  a  member  in  lieu  of  the  president,  and  another 
member  in  lieu  of  the  trial  judge  advocate  if  there  is  no  assist- 
ant trial  judge  advocate;  or,  in  a  proper  case,  a  member  in  lieu 
of  the  president,  and  another  member  in  lieu  of  both  the  trial 
judge  advocate  and  assistant  trial  judge  advocate  if  both  are 


298 


COURTS-MARTIAL — RECORDS   OF  TRIAL.          ^f    357 

unable  to  authenticate  the  record,  subscribed  the  record.  In  any 
case  where  the  record  is  subscribed  by  a  member  in  lieu  of  the 
president,  or  by  the  assistant  trial  judge  advocate  or  another 
member  in  lieu  of  the  trial  judge  advocate,  or  by  another  member 
in  lieu  of  both  the  trial  judge  advocate  and  assistant  trial  judge 
advocate,  the  facts  which  make  such  action  proper  will  appear  in 
the  record  by  the  signature,  as  follows : 

Name  and  rank.  A  member  in  lieu  of  the  president,  be- 
cause of  his  (death)  (disability)  (absence). 

Name  and  rank.  Assistant  trial  judge  advocate,  because 
of  (death)  (disability)  (absence)  of  trial  judge  advo- 
cate. 

Name  and  rank.  A  member  in  lieu  of  trial  judge  advo- 
cate, because  of  his  (death)  (disability)  (absence). 
(This  to  be  used  where  no  assistant  trial  judge  advocate 
was  appointed  for  the  court.) 

Name  and  rank.  A  member  in  lieu  of  trial  judge  advo- 
cate and  assistant  trial  judge  advocate,  because  of 
(death)  (disability)  (absence)  of  trial  judge  advocate, 
and  of  (death)  (disability)  (absence)  of  assistant  trial 
judge  advocate. 

55.  In  case  the  trial  judge  advocate  has  recorded  the  find- 
ings and  sentence  with  a  typewriter,  then  a  certificate  that 
he  recorded  the  findings  and  sentence  of  the  court,  in  those 
exceptional  cases  only,  where  the  sentence  has,  under  the  pro- 
visions of  paragraph  332a,  supra,  been  directed  by  the  court 
not  to  be  announced  in  open  court. 

56.  Appended  to  the  record  (but  not  as  exhibits,  except  where 
received  in  evidence  at  the  trial),  and  securely  bound  with  it, 
will  be — 

(1)  The  original  counterpart  of  the  charges  upon  which 

is  indorsed — 

(2)  The  order  referring  the  case  for  trial;  together  with 

one  copy  of  each  of — 

(3)  The  report  of  the  investigating  officer,  with — 

(4)  The  summaries  of  the  testimony  of  the  witnesses, 

and  the  report,  if  any,  of  the  medical  officer,  on  the 
preliminary  investigation,  and  all  other  accompany- 


299 


*f    858  CHAPTER  XV. 

ing  documents  and  inclosures  and  indorsements 
thereon,  and  including — 

(5)  The  report  of  the  staff  judge  advocate  under  para- 

graph 76b,  snpra,  and — 

(6)  The  report  of  any  medical  board  convened  either 

nnder  paragraph  76c  or  paragraph  219d,  supra. 
57.  Where  the  trial  was  a  rehearing  of  the  case  there  will 
also  be  similarly  appended  the  record  of  trial  on  the  prior  hear- 
ing or  hearing's,  including  the  original  order  referring  the  case 
for  such  rehearing,  together  with  all  other  papers  and  docu- 
ments referred  to  the  trial  judge  advocate  under  paragraph 
377a,  infra. 

(c)  Record  of  Revision. — Subject  to  the  modifications  in- 
dicated by  the  form  of  proceedings  in  revision,  Appendix  10, 
infra,  the  foregoing  will,  so  far  as  applicable,  govern  in  re- 
spect to  such  proceedings. 

(d)  Clemency  Recommendation. — A  recommendation  to 
clemency  will  not  be  embodied  in  the  record  proper,  but 
will  be  bound  into  the  record  immediately  after  the  exhibits. 
(See  par.  332.) 

SECTION  II. 
SPECIAL  COURTS-MARTIAL. 

358.  FORM  AND  SUBSTANCE. — (a)  Except  as  otherwise  in- 
dicated by  the  form  for  record  of  trial  by  special  court,  or 
elsewhere,  the  requirements  in  respect  of  the  form  and  sub- 
stance of  such  -records  are  in  general  the  same  as  for  records 
of  trial  by  general  courts-martial.  (See  form,  Appendix  11.) 

(b)  Neither  oral  testimony  received  by  the  court  nor  state- 
ments or  arguments  made  will  be  recorded  unless  herein  spe- 
cifically required,  -or  ordered  by  competent  authority  (see 
par.  154  (d) ) ;  but  (except  in  cases  where  the  testimony  is 
ordered  recorded)  a  brief  written  summary  of  the  testimony 
(including  at  length  any  questions  to  which  objection  is  made, 
and  the  action  of  the  court  thereon,  whether  sustaining  or  over- 
ruling the  objection,  and  the  answers  thereto,  if  answered)  of 
each  witness  (and  of  the  accused,  if  sworn  as  a  witness),  and 


300 


COURTS-MARTIAL — RECORDS   OF  TRIAL.          ^f    359 

also  of  any  statements  or  arguments,  will  be  made  in  open  court 
by  the  president,  or  by  one  of  the  other  members  under  the  direc- 
tion of  the  president,  and  will  be  made  a  part  of  the  record. 

(c)  Documentary  evidence  received  by  the  court,  the  orig- 
inals of  which  can  properly  be  appended  to  the  record,  such 
as  depositions,  letters,  canceled  checks,  if  not  required  else- 
where, and  other  documents,  and  also  any  written  statement  or 
argument  made  by  or  on  behalf  of  the  accused,  and  any  rec- 
ommendations to  clemency,  and  other  similar  papers,  will 
be  so  appended. 

(d)  Copies  of  writings  received  in  evidence,  the  originals 
of  which  can  not  properly  be  appended  to  the  record,  such 
as  certificates  of  discharge,  recommendations  as  to  character, 
and  similar  papers  will  be  so  appended. 

(e)  If  a  special  plea  is  made,  and  upon  any  challenge  or 
motion,  the  record  will  set  out  in  full  the  proceedings  had 
thereon,  including  all  testimony  taken  thereon  and  state- 
ments made   relative  thereto,   as  well   as  the   disposition 
thereof  made  by  the  court. 

(/)  Evidence  of  previous  convictions,  if  any,  will  not  be 
appended  to  the  record,  but  will  be  returned  by  the  trial 
judge  advocate  with  the  record  of  trial  to  the  appointing 
authority. 

(g)  If  the  findings  and  sentence  or  acquittal  are  announced  in 
open  court  no  certificate  that  the  trial  judge  advocate  recorded 
typewritten  findings  or  sentence  is  required. 

(h)  The  record  will,  at  the  end,  contain  sufficient  space 
for  the  action  of  the  reviewing  authority.  If  necessary  for 
this  purpose,  an  extra  sheet  will  be  included.  ^ 

359.  NUMBER  OF  COPIES. — One  copy  only  of  the  record  will 
be  prepared,  except  in  cases  where  the  testimony  is  ordered 
recorded,  when  a  carbon  copy  will  be  prepared  for,  and  de- 
livered to,  the  accused,  upon  his  request,  in  the  same  manner 
prescribed  in  the  case  of  a  general  court-martial.     (See  pars. 
117  and  357  (b)  3,  supra,  and  366  (b),  infra.) 

360.  NOT  INDEXED — Exceptions. — The  record  will  not  be 
indexed,  except  in  cases  where  the  testimony  is  ordered  re- 
corded, when  it  will  be  indexed  in  the  same  manner  as  the  record 
of  a  general  court-martial.     (See  par.  357  (b)  2,  supra.) 


f  360a  CHAPTER  xv. 

360a.  The  testimony  will  ordinarily  be  ordered  recorded,  and 
the  employment  of  a  reporter  authorized,  in  cases  where  the 
seriousness  of  the  charges,  or  other  circumstances,  such  as  the 
liability  of  the  accused  to  be  deprived  of  a  valuable  military 
status,  warrant  it  in  the  opinion  of  the  appointing  authority. 

361.  BRIEFED. — The  record  will  be  briefed  as  prescribed 
for  the  record  of  a  general  court-martial. 

362.  BOUND. — The  record  will  be  securely  bound.     The 
method  of  binding  is  not  prescribed,  but  it  must  be  such  as 
will  securely  fasten  together  all  the  leaves  and  parts  that 
comprise  the  record.    Easily  removable  clips  or  paper  fas- 
teners will  not  be  used  for  this  purpose. 

SECTION  III. 
SUMMARY  COURTS-MARTIAL. 

363.  FORM  AND  SUBSTANCE. — The  requirements  in  respect 
of  the  form  and  substance  of  records  of  trial  by  summary 
court  are  indicated  in  the  form  for  record  of  trial  by  sum- 
mary court.    (See  Appendix  12,  infra.)    Except  as  otherwise  re- 
quired by  Paragraphs  215  and  351  (d)  and  (f),  supra,  and  by  the 
note  to  Paragraph  43,  supra,  or  indicated  by  the  form  of  record  of 
trial  in  Appendix  12,  the  pleas,  findings  and  sentence  or  ac- 
quittal only  are  required  to  be  recorded  and  subscribed  by 
the  summary  court  as  such.    The  action  of  the  commanding 
officer  on  the  record,  with  date  and  his  signature,  completes 
the  record. 

^  SECTION  IV. 

CORRECTION   OF  RECORDS  OF  TRIAL. 

364.  RECORDS  OF  GENERAL  OR  SPECIAL  COURTS-MARTIAL. — 
A  record  of  trial  by  general  or  special  court-martial,  which 
by  reason  of  omission,  error,  or  other  defect  is  substantially 
incomplete  or  incorrect,  or  which  in  the  opinion  of  the  ap- 
pointing authority  shows  improper  action  by  the  court,  may 
be  returned  by  the  appointing  authority  to  the  president  of 
the  court  (but  see  A.  W.  40,  and  par.  352,  supra),  directing 
that  the  court  be  reconvened  for  such  action  as  may  be  ap- 
propriate.   In  any  such  case  the  defective  part  of  the  record 


302 


COURTS-MARTIAL — RECORDS   OF  TRIAL.         "If    365 

will  be  left  unchanged  and  without  erasure  or  interlinea- 
tion, and  the  record  of  proceedings  in  revision  will  show 
specifically,  ordinarily  by  page  and  line,  the  part  of  the 
original  record  that  is  changed  and  the  change  made.  (See 
par.  352,  and  Form  for  Revision  of  Record,  Appendix  10,  infra.) 

365.  KECORDS  OF  SUMMARY  COURTS-MARTIAL. — A  record  of 
trial  by  summary  court  which  by  reason  of  omission,  error, 
or  other  defect,  is  substantially  incomplete  or  incorrect,  or 
which,  in  the  opinion  of  the  appointing  authority,  shows 
improper  action  by  the  court  (but  see  A.  W.  40,  and  par.  352, 
supra),  may  be  returned  by  the  appointing  authority  to  the 
summary  court  for  such  action  as  may  be  appropriate.     ( See 
par.  353.) 

SECTION  V. 
DISPOSITION  OF  RECORDS  OF  TRIAL. 

366.  BY  TRIAL  JUDGE  ADVOCATE. —  (a)  Original  Record. — 
The  trial  judge  advocate  of  a  court-martial  shall,  with  such 
expedition  as  circumstances  may  permit,  forward  to  the 
appointing  authority,  or  to  his  successor  in  command,  the 
original  record  of  the  proceedings  of  the  court  in  the  trial 
of  each  case.    The.  record  should  be  forwarded  as  an  inclo- 
sure  to  a  letter  of  transmittal  from  the  trial  judge  advocate, 
returning  to  the  appointing  authority  the  charges  and  other 
papers  referred  to  him,  and  forwarding  at  the  same  time  the 
required  copy  of  the  reporter's  voucher.    The  original  record 
of  the  proceedings  of  a  general  court-martial  appointed  by 
the  President  will  be  sent  by  the  trial  judge  advocate  directly 
to  the  Judge  Advocate  General  of  the  Army. 

(b)  Carbon  Copy. — The  trial  judge  advocate  of  a  general 
court-martial,  or  of  a  special  court-martial  where  the  testimony 
has  been  ordered  recorded,  shall,  if  the  accused  so  desires,  de- 
liver or  cause  to  be  delivered  to  the  accused  personally,  the  car- 
bon copy,  when  one  is  prepared  (see  pars.  355a  and  359,  supra), 
of  the  record  of  his  trial,  after  it  has  been  corrected,  com- 
pleted, and  certified  as  a  true  copy  (except  as  to  findings  and 
sentence,  in  the  exceptional  cases  where  the  same  are  not  an- 
nounced in  open  court);  and  except  as  to  exhibits  not  copied; 
and  will  take,  and  forward  to  the  convening  authority  with  the 
21358°— 20 20 

303 


^f    367  CHAPTER   XV. 

record  of  trial,  the  receipt  of  the  accused  therefor;  or,  in  case  the 
accused  declines  to  sign  such  receipt,  the  affidavit  thereto  of  the 
person  making  such  delivery,  stating  the  time  and  place  thereof, 
and  that  the  accused  personally  declined  to  sign  such  receipt,  will 
be  so  forwarded  to  the  convening  authority. 

367.  BY  APPOINTING  AUTHORITY. — (a)  Records  of  Trial 
~by  General  Courts-Martial. — After  having  been  acted  upon 
by  the  officer  appointing  the  court,  or  by  the  officer  com- 
manding for  the  time  being,  and  by  the  confirming  authority, 
if  there  be  one,  the  record  of  each  trial  by  general  court- 
martial,  with  the  decisions  and  orders  of  the  appointing 
authority  made  thereon,  and  of  the  confirming  authority,  if 
any,  will  be  transmitted  direct  to  the  Judge  Advocate  Gen- 
eral of  the  Army,  accompanied  by  the  statement  of  service, 
if  there  be  any,  and  by  the  receipt  of  the  accused,  if  any,  for  a 
copy  of  the  record,  or  affidavit,  if  any,  of  delivery  of  a  copy  to  him, 
and  one  original  counterpart  of  the  charges ;  the  report,  if  any,  of 
the  psychiatrist  or  medical  officer  under  paragraph  76a,  supra; 
the  report  of  the  medical  board,  if  any;  the  summaries  of  the 
evidence  on  preliminary  investigation,  and  the  report  of  the 
investigating  officer  with  all  indorsements  thereon,  including 
forwarding  indorsements  of  the  commanding  officer  and  of  all 
intermediate  commanders ;  the  report  of  the  staff  judge  advocate 
to  the  appointing  authority,  under  A.  W.  70,  and  the  order  of 
reference  for  trial;  and  also  by  the  report  or  review  of  the  staff 
judge  advocate  upon  the  record  of  trial  under  A.  W.  46,  and  by 
five  copies  of  the  order,  if  there  be  any,  promulgating  the 
result  of  the  trial. 

(b)  Records  of  Trial  ~by  Special  Courts-Martial. — After 
having  been  acted  upon  by  the  officer  appointing  the  court, 
or  by  the  officer  commanding  for  the  time  being,  the  record 
of  each  trial  by  special  court-martial,  accompanied  by  an 
order  publishing  the  result  of  the  trial,  and  by  one  original 
counterpart  of  the  charges ;  the  report  of  the  investigating  officer, 
with  the  summary  of  the  evidence  on  the  preliminary  investiga- 
tion; the  report,  if  any,  of  the  psychiatrist  or  medical  officer;  the 
report,  if  any,  of  any  medical  board  and  all  indorsements  and 
other  accompanying  papers;  and  the  order  of  reference  for  trial; 
and,  if  any,  the  receipt  of  the  accused  for  (or  affidavit  of  delivery 


304 


COURTS-MARTIAL — RECORDS  OF  TRIAL.          ^]    368 

to  him  of)  a  copy  of  the  record,  will  be  forwarded  ordinarily 
without  indorsement  or  letter  of  transmittal,  to  the  officer 
exercising  general  court-martial  jurisdiction  over  the  com- 
mand, there  to  be  filed  in  the  office  of  the  staff  judge  advocate 
until  the  completion  of  the  accused's  sentence,  whereupon  it  will 
be  forwarded  by  the  staff  judge  advocate  direct  to'  the  Judge 
Advocate  General  for  permanent  file.  (A.  W.  36, ) 

(c)  Records  of  Trial  ~by  Summary  Courts-Martial. — The 
several  records  of  trial  by  summary  courts-martial  within  a 
command  shall  be  filed  together  in  the  office  of  the  com- 
manding officer  and  shall  constitute  the  summary -court  rec- 
ord of  the  command. 

(d)  Reports  of  Trial  ~by  Summary  Courts-Martial. — The 
report  of  trial  by  summary  court  (copy  of  record  of  trial) 
will,  with  the  least  practicable  delay  after  action  has  been 
taken  on  the  sentence,  be  completed  and  transmitted  to  the 
officer   exercising    general    court-martial    jurisdiction   over 
the  command,  there  to  be  filed  in  the  office  of  the  staff  judge 
advocate  until  the  statistical  information  in  it  required  for 
the  annual  report  of  the  staff  judge  advocate  have  been  se- 
cured, when  it  may  be  destroy ed.    {A.  W.  36.) 

SECTION  VI. 
LOSS  OF  RECORDS  OF  TRIAL. 

368.  ACTION  TO  BE  TAKEN. — When,  prior  to  action  by  the 
reviewing  authority,  a  record  of  trial  by  court-martial  is 
lost  or  destroyed,  a  new  record  of  trial  in  the  case  will,  if 
practicable,  be  prepared  and  will  become  the  record  of  trial 
in  the  case.  Such  new  record  will,  however,  only  be  pre- 
pared when  the  extant  original  notes  or  other  sources  are 
such  as  to  enable  the  preparation  of  a  complete  and  accurate 
record  of  the  case.  In  any  case  of  loss  of  a  record  of  trial 
by  court-martial  the  summary  court,  trial  judge  advocate, 
or  other  proper  person  will  fully  inform  the  appointing 
authority  as  to  the  facts  and  as  to  the  action,  if  any,  taken* 


305 


CHAPTER  XVI. 

COURTS-MARTIAL—ACTION   BY   APPOINTING  OR 
SUPERIOR  AUTHORITY— APPELLATE  REYIEW. 

Section  I :  Action  on  the  proceedings :  Page. 

369.  Reviewing  authority 307 

370.  Review  by  Staff  Judge  Advocate 307 

371.  Sentence  not  effective  until  approved 310 

372.  Effect  of  approval  and  disapproval 310 

873.  Manner  of  approval 311 

374.  The  officer  commanding  for  the  time  being 811 

375.  Action  where  accused  is  transferred  to  another  depart- 

ment    312 

376.  Reviewing  authority  must  act  in  person 312 

376a.  Error— Effect  of  Article  of  War  37 313 

377.  Powers  incident  to  power  to  approve 313 

377a.  Rehearing 315 

378.  Confirmation  of  sentences 317 

379.  Powers  incident  to  power  to  confirm 318 

380.  Mitigation  of  punishment— Definition 318 

381.  Mitigation  or  remission  of  sentences 318 

382.  Mitigation  when  permissible 819 

383.  Effect  of  remission  at  time  of  approval 320 

384.  Commutation  of  sentences 320 

385.  Adding  to  sentences 320 

386.  Sentences  in  excess  of  legal  limit 320 

387.  Action  on  sentence  may  be  modified  before  publication-  320 

388.  Where  conviction  or  desertion  is  disapproved — Grounds 

to  be  stated 320 

389.  Place  of  confinement — Change  of 321 

390.  Loss  of  files 821 

391.  Suspension  of  sentences  until  pleasure  of  President  be 

known 821 

392.  Suspension  of  sentences 822 

893.  Execution   or  remission — Confinement  in  disciplinary 

barracks 822 

394.  Place  of  confinement  to  be  designated  by  reviewing  au- 
thority    823 

895.  Forms  for  action  on  sentence  by  reviewing  authority 823 

896.  When  confinement  in  a  penitentiary  may  be  directed..  323 

897.  When   confinement   in   disciplinary   barracks   will   be 

directed .. 324 

398.  When  confinement  in  post  will  be  directed 324 

899.  Cooperation  of  reviewing  authorities 324 

306 


COURTS-MARTIAL — ACTION.  If    369 

Section  II :  Appellate  review : 

399a.  Review  of  general  court-martial  cases  under  Article  Page, 

of  War  50* 324 

400.  Court-martial  orders 329 

Section  III :  Action  after  promulgation  of  sentence : 

401.  Date  of  beginning  of  sentence 829 

402.  Applications  for  clemency 330 

403.  Remission  of  suspended  sentence  of  dishonorable  dis- 

charge    -  331 

404.  Clemency  applications  limited  to  one  in  six  months 831 

SECTION  I. 
ACTION  ON  THE  PROCEEDINGS. 

369.  REVIEWING    AUTHORITY. — The    term    reviewing    au- 
thority is  employed  to  designate  the  officer  whose  province 
and  duty  it  is  to  take  action  upon  the  proceedings  of  a  court- 
martial  after  the  same  are  terminated,  and,  when  the  record 
is  transmitted  to  him  for  such  action,  to  approve  or  disap- 
prove  the  sentence.     This  officer   is   ordinarily  the  com- 
mander   who   has    convened   the   court.     In    his   absence, 
however,  or  where  the  command  has  been  otherwise  changed, 
his  successor  in  command,  or,  in  the  language  of  A.  W.  46, 
"  the  officer  commanding  for  the  time  being  "  is  invested  (by 
that  article)  with  the  same  authority  to  pass  upon  the  pro- 
ceedings and  order  the  execution  of  the  sentence  in  a  case  of 
conviction.     (Digest,  p.  554,  XIV,  A,  1.)     The  term  "ap- 
pointing authority"  is  sometimes  employed  to  denote  the 
reviewing  authority,  but  the  latter  term  is  the  more  correct 
one. 

370.  Review  by  Staff  Judge  Advocate. — "  Under  such  regu- 
lations as  may  be  prescribed  by  the  President,  every  record  of 
trial  by  general  court-martial  or  military  commission  received 
by  a  reviewing  or  confirming  authority  shall  be  referred  by  him, 
before  he  acts  thereon,  to  his  staff  judge  advocate  or  to  the  Judge 
Advocate  General."     (A.  W.  46.)     The  staff  judge  advocate  or 
one  of  his  assistants  will  prepare  a  written  review,  or  report,  as 
circumstances  may  require,  in  each  case  of  conviction  by  gen- 
eral court-martial  or  military  commission.     Such  review  or  re- 
port is  intended  primarily  to  advise  the  reviewing  or  confirming 
authority  as  to  the  essential  features  of  the  case  and  as  to  the 
action  that  he  should  take  thereon.     Where  the  evidence  in 


307 


Tf  570  CHAPTER  XVI. 

support  of  each  specification  upon  which  the  accused  is  convicted 
is  clear  and  conclusive  and  there  are  no  errors  or  irregularities 
which  may  be  regarded  as  affecting  the  substantial  rights  of  the 
accused  or  as  invalidating  the  sentence  in  whole  or  in  part,  a 
review  will  not  be  required,  but  a  report  to  that  effect  will  be 
sufficient.  When  the  evidence  in  support  of  a  specification  is 
weak  or  conflicting,  or  where  the  evidence  for  the  defense  tends 
to  weaken  the  evidence  for  the  prosecution  or  to  disprove  the 
allegations  in  the  specification,  a  review  will  be  prepared  and 
all  the  material  evidence  relating  to  the  specification  will  be 
weighed;  and  the  reviewer  will  state  his  opinion,  both  as  to 
the  weight  of  evidence  and  any  error  or  irregularity  that  may 
be  involved,  and  as  to  whether  or  not  the  finding  of  guilty  should 
be  approved,  together  with  his  reasons  for  such  opinion.  Where 
the  accused  has  been  convicted,  however,  upon  other  specifica- 
tions upon  clear  and  conclusive  evidence  it  is  sufficient  that  the 
reviewer  state  that  fact  with  reference  to  such  specifications  in 
the  review. 

The  review  will  contain  a  statement  of  such  errors  as  may 
have  been  committed  to  the  prejudice  of  the  accused  in  the 
course  of  the  trial  or  in  the  preparation  of  the  record,  and  all 
such  irregularities  as  may  have  affected  the  validity  of  the 
proceedings  or  sentence.  Each  of  such  errors  or  irregularities 
will  be  carefully  weighed  in  the  review  for  the  purpose  of  in- 
forming the  reviewing  authority  whether  he  should  or  should 
not,  in  view  of  the  provisions  of  the  thirty-seventh  article  of 
war,  hold  the  sentence  invalid  or  direct  a  rehearing;  and  the 
reviewer  will  expressly  state  as  to  such  errors  or  irregularities 
whether  or  not  in  his  opinion  the  sentence  or  any  part  thereof 
should  be  held  invalid  or  whether  or  not  in  his  opinion  a  rehear- 
ing should  be  directed.  When  reference  is  made  to  any  error 
the  page  of  the  record  which  discloses  such  error  will  be  cited, 
and,  when  testimony  is  referred  to,  the  name  of  the  witness  giv- 
ing such  testimony  and  the  page  on  which  the  same  is  recorded 
will  be  cited. 

The  judge  advocate  making  a  report  or  review  will  begin  the 
same  by  stating  the  place  and  dates  at  which  the  accused  (stat- 
ing his  name  and  age)  was  tried,  and  the  sentence  that  was 
adjudged,  and  will  then  set  forth  the  charges  and  specifications, 


808 


COURTS-MARTIAL — ACTION".  If    370 ' 

either  verbatim  or  in  substance,  as  may  be  thought  best,  upon 
which  the  accused  was  convicted.  After  such  remarks  as  may  be 
necessary  in  view  of  the  above  paragraphs  of  this  regulation  the 
officer  making  the  review  or  report  will  make  specific  recom- 
mendation as  to  the  sentence,  either  (a)  that  the  sentence  be 
approved  or  disapproved  in  whole,  or  (b)  that  it  be  approved  in 
part,  or  (c)  that  a  rehearing  be  directed,  giving  his  reasons  for 
his  recommendation  in  each  case;  and  the  report  or  review  will 
conclude  with  a  draft  of  the  action  to  be  taken  by  the  reviewing 
authority  which  the  officer  making  the  report  or  review  rec- 
ommends. (See  par.  339.)  The  report  or  review  will  be  signed 
by  the  officer  making  the  same.  If  signed  by  an  assistant  staff 
judge  advocate,  the  staff  judge  advocate  will  indorse  thereon 
either  (a)  his  approval  or  (b)  his  disapproval,  with  his  reasons 
therefor,  and  will  incorporate  in  his  indorsement  of  disapproval 
a  draft  of  the  action  to  be  taken  by  the  reviewing  authority 
which  he  recommends. 

The  signed  copy  of  the  report  or  review  will  be  transmitted 
with  the  record  of  trial  to  the  Judge  Advocate  General. 

The  reviewing  authority  will  state  at  the  end  of  the  record 
of  trial  in  each  case  his  decisions  and  orders. 

NOTE  1. — The  review  or  report  is  intended  to  supplement,  not  to 
replace,  the  personal  interview  which  the  reviewing  authority  has 
with  the  staff  judge  advocate  or  the  assistant  who  studies  the  case. 
This  interview  should  toe  had  in  all  cases  where  the  reviewing 
authority  does  not  regard  the  review  or  report  as  giving  all  tne 
information  or  advice  required,  or  where  he  differs  from  the  officer 
making  the  same  as  to  any  statement  or  recommendation. 

NOTE  2. — The  regulations  in  this  Manual  specifying  the  contents 
of  a  review  or  report  will  not  preclude  the  reviewing  authority 
from  directing  in  any  case  that  a  more  complete  review  or  report 
be  prepared  than  the  regulation  requires. 

NOTE  3. — Should  the  reviewing  authority  after  receiving  the 
advice  of  his  staff  judge  advocate  still  be  in  doubt  as  to  the  action 
that  lie  may  or  should  take  upon  the  sentence  he  may  transmit  the 
record  to  the  Judge  Advocate  General  with  request  for  advice  either 
(a)  as  to  the  whole  case,  or  (b)  as  to  any  particular  matter  in- 
volved in  the  case;  and  will  so  transmit  it  for  advice  on  the  whole 
case  before  acting  on  it,  if  there  be  no  staff  judge  advocate  or 
officer  acting  as  such  on  duty  with  his  command. 

NOTE  4. — The  duties  herein  defined  for  a  staff  judge  advocate  will 
be  performed  by  the  officer  acting  as  such,  if  no  judge  advocate  is  on 
duty  on  the  staff  of  the  reviewing  authority. 


Tf    371  CHAPTER  XVI. 

371.  SENTENCE  NOT  EFFECTIVE  UNTIL  APPROVED. — No  sen- 
tence of  a  court-martial  shall  be  carried  into  execution,  or 
ordered  executed,  until  the  same  shall  have  been  approved  by 
the  reviewing  authority  as  defined  in  paragraphs  369  and 
374,  and  confirmed  if  confirmation  be  necessary  (see  par.  378, 
infra),  and  until,  also,  if  it  be  a  sentence  of  a  general  court- 
martial  involving  the  penalty  of  death,  dismissal  not  suspended, 
or  any  sentence  (not  based  solely  upon  findings  of  guilty  of  all 
specifications  and  charges,  all  supported  by  pleas  of  guilty)  in- 
volving dishonorable  discharge  not  suspended,  or  confinement 
in  a  penitentiary,  or  requiring  the  approval  or  confirmation  of 
the  President  under  A.  W.  46,  48,  or  51,  it  shall  have  been 
examined  and  acted  upon  by  the  board  of  review  and  the  Judge 
Advocate  General  as  required  by  Article  of  War  50  ^£. 

Upon  acquittal,  or  upon  conviction  where  the  sentence 
does  not  include  confinement,  the  accused,  if  in  confinement  or 
arrest,  shall  be  released  from  confinement  or  arrest  as  pro- 
vided in  paragraph  332a.  The  announcement  of  the  result 
of  trial  in  orders  is  not  necessary  to  the  validity  of  the 
sentence  or  acquittal.  It  is  not  necessary  for  the  review- 
ing authority  to  approve  the  findings  and  proceedings. 

372.  EFFECT  OF  APPROVAL  AND  DISAPPROVAL. — (a)  While 
approval  gives  life  and  operation  to  a  sentence,  disapproval, 
on  the  other  hand,  nullifies  it.     A  disapproval  of  the  sen- 
tence of  a  court-martial  by  the  reviewing  authority  is  not  a 
mere  expression  of  disapprobation  but  is  a  final  determinate 
act  putting  an  end  to  the  disapproved  sentence  (or  findings) 
and  rendering  them  entirely  nugatory  and  inoperative ;  and 
the  legal  effect  of  a  disapproval  is  the  same  whether  or  not 
the  officer  disapproving  is  authorized  finally  to  confirm  the 
sentence.    But  to  be  thus  operative  a  disapproval  should 
be  expressed.     The  effect  of  the  entire  disapproval  of  a 
sentence  is  not  merely  to  annul  the  same  as  such  but  also 
to  prevent  the  accruing  of  any  disability  or  forfeiture  which 
would  have  been  incidental  upon  an  approval.     (Digest, 
p.  563,  XIV,  E,  9,  b,  (1).) 

(b)  An  acquittal  is  not  a  "  sentence  "  within  the  meaning  of 
the  Articles  of  War,  or  of  this  Manual,  and  does  not  require 
approval  or  confirmation.  It  will  not  be  either  approved  or 


310 


COURTS-MAKTIAL — ACTION.  ^f    373 

disapproved;  but  will  merely  be  promulgated  in  a  court-martial 
order, 

The  same  rule  applies  to  any  finding  of  "  not  guilty  "  of  any 
charge  or  specification. 

(c)  "No  authority  will  disapprove  or  return  for  reconsidera- 
tion either — 

(a)  An  acquittal;  or 

(b)  A  finding  of  not  guilty  of  any  specification;  or 

(c)  A  finding  of  not  guilty  of  any  charge,  unless  the 

record  shows  a  finding  of  guilty  under  a  specifica- 
tion laid  under  that  charge,  which  sufficiently 
alleges  a  violation  of  some  article  of  war;  or 

(d)  The  sentence  originally  imposed,  with  a  view  to  in- 

creasing its  severity,  unless  such  sentence  is  less 
than  the  mandatory  sentence  fixed  by  law  for  the 
offense  or  offenses  upon  which  a  conviction  has 
been  had. 

And  no  court-martial,  in  any  proceedings  on  revision,  shall 
reconsider  its  findings  or  sentence  in  any  particular  in  which  a 
return  of  the  record  of  trial  for  such  reconsideration  is  herein- 
before prohibited."  (A.  W.  40.) 

373.  MANNER  OF  APPROVAL. — The   approval  of  the  sen- 
tence should  properly  be  of  a  formal  character.    The  article 
requires  the  sentence  to  be  approved.     A  formal  approval 
of  the  findings  only  does  not  meet  the  requirement  of  the 
article.    The  sentence  should  be  approved  by  "the  officer 
appointing  the  court,"  or  the  officer  commanding  for  the 
time  being,  although — as  in  a  case  of  a  sentence  of  dismissal 
in  time  of  peace  —  he  may  not  be  empowered  finally  to 
confirm  and  give  effect  to  the  sentence.    His  approval  is 
required  as  showing  that  he  does  not,  as  he  is  authorized 
to  do,  disapprove.     (Digest,  p.  174,  CIV,  A,  1,  and  A,  2.) 

374.  THE  OFFICER  COMMANDING  FOR  THE  TIME  BEING. — 
The  "  officer  commanding  for  the  time  being,"  indicated  in 
A.  W.  46,  is  an  officer  who  has  succeeded  to  the  command 
of  the  officer  who  appointed  the  court;  as  where  the  latter 
has  been  regularly  relieved  and  another  officer  assigned  to 
the  command ;  or  where  the  command  of  the  appointing 
officer  has  been  discontinued,  and  merged  in  a  larger  or  other 
command,  at  some  time  before  the  proceedings  of  the  court 

311 


^    376  CHAPTER  XVI. 

are  completed  and  required  to  be  acted  upon.  Thus  where, 
under  these  circumstances,  a  separate  brigade  has  ceased  to 
exist  as  a  distinctive  organization  and  been  merged  in  a 
division,  or  a  division  has  been  similarly  merged  in 'an  army 
or  department,  the  commander  of  the  division  in  the  one 
case  and  of  the  army  or  department  in  the  other,  is  "the 
officer  commanding  for  the  time  being,"  in  the  sense  of  the 
article.  'So,  where  a  court  was  convened  by  a  division  com- 
mander, but  before  the  reviewing  authority  had  acted  upon 
the  sentence  the  division  was  discontinued  and  the  organiza- 
tions composing  it  were  distributed  among  the  divisions  of 
another  corps,  it  was  held  that  the  commander  of  this  other 
corps  was  the  officer  "  commanding  for  the  time  being."  So, 
where,  before  the  proceedings  of  a  special  court  convened 
by  a  post  commander  were  completed,  the  post  command  had 
ceased  to  exist  and  the  command  became  distributed  in  the 
department,  it  was  held  that  the  department  commander,  as 
the  legal  successor  of  the  post  commander,  was  the  proper 
authority  to  approve  the  sentence.  (Digest,  p.  174,  CIV,  C, 
1 ;  p.  175,  CIV,  C,  2,  and  see  C,  4.) 

375.  ACTION  WHERE  ACCUSED  Is  TRANSFERRED  TO  ANOTHER 
DEPARTMENT. — Where  an  accused  who  has  been  tried  by 
general  court-martial  proceeds  with  his  command,  from  the 
division,  army,  or  force,  or  corps  or  army  area  or  department 
or  other  general  court-martial  jurisdiction  in  which  he  has  been 
tried  to  another  division,  army,  or  force,  or  corps  or  army  area 
or  department,  or  other  general  court-martial  jurisdiction,  be- 
fore action  has  been  taken  on  his  case  by  the  reviewing  au- 
thority, the  commanding  general  of  the  division,  army,  or 
force,  or  corps  or  army  area,  or  department  or  other  general 
court-martial  jurisdiction  in  which  he  has  been  tried,  is  the 
proper  reviewing  authority  of  the  case.     (Digest,  p.  554, 
XIV,  A,  3.) 

376.  REVIEWING  AUTHORITY  MUST  ACT  IN  PERSON. — The 
reviewing  authority  can  not  delegate  to  an  inferior  or  other 
officer  his  function  as  reviewing  authority  as  conferred  by 
the  forty-sixth  article  of  war;  nor  can  he  authorize  a  staff 
or  other  officer  to  subscribe  for  him  his  decision  and  orders 
on  the  proceedings.     He  will  sign  in  his  own  hand  the  action 


812 


COURTS-MARTIAL, — ACTION.  ^[    376a 

taken  by  him  on  the  proceedings,  his  rank  and  the  fact  that 
he  is  the  commanding  officer  appearing  after  his  signature. 

376a.  Error — Effect  of  Article  of  War  37. — "The  proceed- 
ings of  a  court-martial  shall  not  be  held  invalid,  nor  the  find- 
ings or  sentence  disapproved,  in  any  case  on  the  ground  of  im- 
proper admission  or  rejection  of  evidence  or  for  any  error  as  to 
any  matter  of  pleading  or  procedure  unless  in  the  opinion  of  the 
reviewing  or  confirming  authority,  after  an  examination  of  the 
entire  proceedings,  it  shall  appear  that  the  error  complained  of  has 
injuriously  affected  the  substantial  rights  of  an  accused:  Pro- 
vided, That  the  act  or  omission  upon  which  the  accused  has  been 
tried  constitutes  an  offense  denounced  and  made  punishable  by 
one  or  more  of  these  articles."  (A.  W.  37.) 

The  thirty-seventh  article  of  war  vests  a  sound  legal  discretion 
in  the  reviewing  authority  to  the  end  that  substantial  justice  may 
be  done.  It  directs  him  to  disregard  the  improper  admission  or 
rejection  of  evidence  or  errors  in  pleading  or  procedure,  unless 
such  erroneous  action  by  the  court  appears  to  him  to  have  oper- 
ated to  the  substantial  injury  of  the  accused.  The  effect  of  the 
erroneous  action  of  the  court  should  be  weighed  by  him  in  the 
light  of  all  the  facts  as  shown  by  the  record,  and,  if  it  appears 
to  him  that  the  court  was  materially  influenced  in  its  finding 
or  sentence  by  its  erroneous  action,  he  should  disapprove  the 
findings  and  sentence,  in  whole  or  in  part,  as  circumstances  may 
require.  The  review  by  the  staff  judge  advocate  will  be  espe- 
cially thorough  as  to  the  effect,  in  his  opinion,  of  any  error 
which  the  court  may  have  made  to  the  prejudice  of  the  accused. 

377.  POWERS  INCIDENT  TO  POWER  TO  APPROVE. — The  power 
to  approve  the  sentence  of  a  court-martial  shall  be  held  to 
include : 

(a)  The  power  to  approve  or  disapprove  a  finding  and  to 
approve  only  so  much  of  a  finding  of  guilty  of  a  particular 
offense  as  involves  a  finding  of  guilty  of  a  lesser  included 
offense  when,  in  the  opinion  of  the  authority  having  power 
to  approve,  the  evidence  of  record  requires  a  finding  of 
only  the  lesser  degree  of  guilt. 

The  authority  here  conferred  to  approve  only  so  much 
of  a  finding  of  guilty  as  involves  a  finding  of  guilty  of  a 
lesser  included  offense  is  coextensive  with  the  power  of 


813 


Tf    377  CHAPTER   XVI. 

courts-martial  to  convict  of  lesser  included  offenses.  The 
more  frequent  occasions  for  the  exercise  of  this  authority  are 
indicated  below. 

(1)  Affray. 

(a)  Assault. 

(b)  Breach  of  peace  (disorder). 

(2)  Assault  with  intent  to  commit  murder. 

(a)  Any  of  the  minor  degrees  of  assault. 

(3)  Battery. 

(a)  Assault. 

(4)  Murder. 

(a)  Manslaughter. 

Voluntary. 
Involuntary. 

(b)  Attempt  to  commit. 

(c)  Felonious  assault. 

(d)  Assault  and  battery. 

(e)  Assault,  bodily  harm. 

(5)  Mayhem. 

(a)  Assault  with  intent  to  commit. 

(b)  Assault  and  battery. 

(c)  Assault,  bodily  harm. 

(6)  Rape. 

(a)  Assault  with  intent  to  commit  rape. 

(b)  Assault  and  battery. 

(c)  Assault. 

(7)  Robbery. 

(a)  Assault  with  intent  to  rob. 

(b)  Larceny  from  the  person. 

(c)  Assault  and  battery. 

(d)  Assault. 

(8)  Desertion. 

(a)  Attempt  to  desert. 

(b)  Absence  without  leave. 

(9)  Willful  disobedience  of  superior  officer, 

(a)   Failure  to  obey. 

(10)  Willful  disobedience  of  noncommissioned  officer. 
(a)  Failure  to  obey. 


314 


COURTS-MARTIAL* — ACTION.  ^f    377a 

(11)  Refusal  to  receive  and  keep  prisoners. 

(a)  Failure  to  receive  and  keep. 

(12)  Quitting  post  to  plunder  or  pillage. 

(a)  Quitting  post. 

(13)  Drunk  on  duty. 

(a)  Drunk. 

(14)  Conduct  unbecoming  an  officer  and  gentleman. 

(a)  Conduct  to  the  prejudice  of  good  order 

and  military  discipline. 

(£)  The  power  to  approve  or  disapprove  the  whole  or  any- 
part  of  the  sentence. 

(c)  The  power  to  remand  a  case  for  rehearing-,  under  the  pro- 
visions of  A.  W.  50y2.  (See  par.  377a,  infra.) 

NOTE. — The  reviewing  authority  (A.  W.  47)  may  approve,  or  the 
confirming  authority  (A.  W.  49)  may  confirm,  so  much  of  a  finding 
of  guilty  as  involves  an  attempt  to  commit  the  offense  alleged. 

377a.  Rehearing. — "When  the  President  or  any  reviewing 
or  confirming  authority  disapproves  or  vacates  a  sentence,  the 
execution  of  which  has  not  theretofore  been  duly  ordered,  he 
may  authorize  or  direct  a  rehearing.  Such  rehearing  shall  take 
place  before  a  court  composed  of  officers  not  members  of  the 
court  which  first  heard  the  case.  Upon  such  rehearing  the  ac- 
cused shall  not  be  tried  for  any  offense  of  which  he  was  found  not 
guilty  by  the  first  court,  and  no  sentence  in  excess  of,  or  more 
severe  than,  the  original  sentence  shall  be  enforced  unless  the 
sentence  be  based  upon  a  finding  of  guilty  of  an  offense  not 
considered  upon  the  merits  in  the  original  proceedings."  (A.  W. 
50%.) 

When  a  rehearing  is  directed  the  record  of  the  former  pro- 
ceedings and  the  other  papers  mentioned  in  paragraphs  77b  and 
79b,  supra,  will  be  referred  with  the  charges  to  the  trial  judge 
advocate,  who  will  permit  the  defense  counsel  and  other  counsel 
for  the  accused  to  examine  them  equally  with  himself.  No 
member  of  the  court  which  rehears  the  case  should  be  permitted 
to  examine  such  record,  or  other  documents  (other  than  the 
charges),  except  if  and  when  (if  at  all)  received  in  evidence  at 
the  rehearing  in  accordance  with  law  or  some  provision  of  this 
Manual. 


315 


5[  S77a  CHAPTER 

If  a  witness  at  the  former  hearing  is  dead,  or  too  old  or  infirm 
to  attend  at  the  rehearing,  or  resides,  or  is  stationed,  more  than 
100  miles  from  the  place  where  the  rehearing  is  had,  or  can  not 
be  found,  his  testimony  at  the  former  hearing,  or  any  part  of 
such  testimony,  will,  in  cases  not  capital,  be  admissible  in  evi- 
dence at  the  rehearing,  subject,  however,  to  the  same  objections 
as  it  would  be  were  the  witness  present  and  testifying  at  the 
rehearing;  provided,  that  in  capital  cases  also,  on  motion  of  the 
accused  or  his  counsel,  the  testimony  at  the  former  hearing  of  a 
witness  thus  absent  may  be  so  received  in  evidence  at  the  re- 
hearing, and  when,  in  a  capital  case,  a  part  of  the  testimony  of 
a  witness  thus  absent  is  received  in  evidence  on  motion  of  the 
accused  or  his  counsel,  the  remainder  of  the  testimony  of  such 
witness  will  thereby  be  rendered  admissible  in  evidence  subject 
to  objections  as  aforesaid. 

But  when  a  rehearing  is  ordered  because  of  an  error  in  the 
admission  or  rejection  of  the  testimony  of  a  witness,  or  other 
error  in  his  examination,  his  testimony  given  at  the  former 
hearing  should  not  be  received  in  evidence  at  the  rehearing  if  it 
is  reasonably  practicable  for  him  to  appear  as  a  witness  before 
the  court.  In  the  ev«nt  that  his  testimony  at  the  former  hear- 
ing is  received,  extreme  care  must  be  taken  by  the  trial  judge 
advocate  that  the  errors  made  at  the  former  hearing  be  not 
repeated.  To  that  end,  the  reviewing  authority  will  in  all  cases 
refer  to  the  trial  judge  advocate  with  the  record  of  the  former 
hearing,  a  copy  of  the  holding  of  the  board  of  review  or  the 
review  by  the  staif  judge  advocate  or  such  other  opinion  or 
holding  as  may  inform  the  trial  judge  advocate  of  the  errors 
made  at  the  former  hearing  which  necessitated  a  rehearing. 
The  papers  thus  referred  to  the  trial  judge  advocate  will  be  ac- 
cessible to  the  defense  counsel  and  any  other  counsel  for  the 
accused,  and  such  parts  thereof  as  relate  to  the  errors  com- 
mitted at  the  former  hearing  may  be  examined  by  the  law  mem- 
ber when  necessary  to  enable  him  to  decide  upon  the  admis- 
sibility  of  testimony  or  other  questions  of  law  involved ;  and  may 
be  read  to  the  court  when  necessary  for  the  court  to  decide  such 
questions  under  the  provisions  of  A.  W.  31. 

When  a  rehearing  is  directed  neither  the  action  of  the  court 
at  the  former  proceeding  nor  the  action  of  the  reviewing  or 


816 


COURTS-MARTIAL — ACTION.  *§    378 

confirming  authority  thereon  will  be  published  in  orders,  but 
the  general  court-martial  order  promulgating  the  final  action 
in  the  case  will  in  a  separate  paragraph  publish  such  charges 
and  specifications  at  the  former  hearing  as  may  not  have  been 
referred  for  rehearing,  together  with  the  action  of  the  court 
and  reviewing  authority  thereon.  The  record  of  the  former 
hearing  will  be  forwarded  to  the  Judge  Advocate  General  with 
the  record  of  the  rehearing. 

NOTE  1. — These  regulations  authorizing  the  receipt  of  testimony 
given  at  a  former  hearing  to  be  received  at  a  rehearing  shall  not 
be  construed  as  preventing  the  calling  of  the  witness  to  testify  in 
person,  or  the  taking  of  his  deposition,  either  in  lieu  of  or  in  addition 
to  his  testimony  at  the  former  hearing. 

NOTE  2. — A  rehearing  may  be  directed  either  before  a  new  court 
especially  convened  for  that  purpose,  or  before  some  other  court 
already  in  existence,  or  before  members  of  the  original  court  who 
did  not  sit  on  the  prior  hearing.  Ordinarily  it  will  be  preferable 
to  detail  the  same  trial  judge  advocate  and  defense  counsel  who 
served  as  such  at  the  former  hearing,  if  they  are  available,  because 
of  their  familiarity  with  the  case. 

378.  CONFIRMATION  OF  SENTENCES. — In  the  following  cases 
confirmation  by  the  President  is  required  before  the  sentence 
of  a  court-martial  is  carried  into  execution: 

(a)  Any  sentence  respecting  a  general  officer. 

(&.)  Any  sentence  extending  to  the  dismissal  of  an  officer 
except  that  in  time  of  war  a  sentence  extending  to  the  dis- 
missal of  an  officer  below  the  grade  of  a  brigadier  general 
may  be  carried  into  execution  upon  confirmation  by  the 
commanding  general  of  the  Army  in  the  field  or  by  the  com- 
manding general  of  the  territorial  department  or  division. 

(c)  Any  sentence  extending  to  the  suspension  or  dismissal 
of  a  cadet,  and 

(d)  Any  sentence  of  death,  except  in  the  cases  of  persons 
convicted  in  time  of  war  of  murder,  rape,  mutiny,  desertion, 
or  as  spies,  and  in  such  excepted  cases  a  sentence  of  death 
may  be  carried  into  execution  subject  to  the  provisions  of 
Article  of  War  50J,  upon  confirmation  of  the  commanding 
general  of  the  Army  in  the  field  or  by  the  commanding  gen- 
eral of  the  territorial  department  or  division. 


317 


If    379  CHAPTER  XVI. 

When  the  authority  competent  to  confirm  the  sentence  has 
already  acted  as  the  approving  authority  no  additional  con- 
firmation by  him  is  necessary.  (A.  W.  48.) 

NOTE  1. — The  power  of  confirmation  of  certain  sentences  in  time 
of  war,  conferred  by  A.  W.  48  upon  the  commanding  general  "  of 
the  territorial  department  or  division  ",  can  not  be  exercised  by  the 
commanding  general  of  a  corps  area  or  Army  area. 

NOTE  2. — For  statement  by  whom  a  sentence  of  dismissal  from 
service  or  dishonorable  discharge  imposed  by  National  Guard  courts- 
martial,  not  in  the  service  of  the  United  States,  must  be  approved 
before  its  execution,  see  section  107,  act  of  June  3,  1916,  39  Stat. 
166,  Appendix  2,  infra. 

379.  POWERS  INCIDENT  TO  POWER  TO  CONFIRM. — The  power 
to  confirm  the  sentence  of  a  court-martial  shall  be  held  to 
include — 

(a)  The  power  to  confirm  or  disapprove  a  finding,  and  to 
confirm  so  much  only  of  a  finding  of  guilty  of  a  particular 
offense  as  involves  a  finding  of  guilty  of  a  lesser  included 
offense  when,  in  the  opinion  of  the  authority  having  power 
to  confirm,  the  evidence  of  record  requires  a  finding  of  only 
the  lesser  degree  of  guilt ; 

(b)  The  power  to  confirm  or  disapprove  the  whole  or  any 
part  of  the  sentence ;  and 

(c)  The  power  to  remand  a  case  for  rehearing,  under  the  pro- 
visions of  Article  of  War  50^.     (A.  W.  49.)     (See  par.  377a, 
supra.) 

The  manner  of  the  exercise  of  the  power  conferred  upon 
confirming  authorities  is  indicated  in  the  remarks  in  para- 
graph 377  and  the  subparagraphs  thereunder,  relating  to  the 
powers  incident  to  the  power  to  approve  a  sentence  as  pro- 
vided for  under  A.  W.  47. 

380.  MITIGATION  or  PUNISHMENT — DEFINITION. — By  miti- 
gating a  punishment  is  meant  a  reduction  in  quantity  or 
quality,  the  general  nature  of  the  punishment  remaining 
the  same.     (Digest,  p.  177,  CXII,  B.) 

381.  MITIGATION  OR  REMISSION  OF  SENTENCES. — The  power 
to  order  the  execution  of  the  sentence  adjudged  by  a  court- 
martial  shall  be  held  to  include,  inter  alia,  the  power  to 
mitigate  or  remit  the  whole  or  any  part  of  the  sentence. 
Any  unexecuted  portion  of  a  sentence  adjudged  by  a  court- 
martial   may   be  mitigated    or   remitted   by    the   military 

318 


COURTS-MARTIAL — ACTION.  ^f    382 

authority  competent  to  appoint,  for  the  command,  exclusive 
of  penitentiaries  and  the  United  States  Disciplinary  Bar- 
racks, in  which  the  person  under  sentence  is  held,  a  court  of 
the  kind  that  imposed  the  sentence,  and  the  same  power  may 
be  exercised  by  superior  military  authority;  but  no  sen- 
tence approved  or  confirmed  by  the  President  shall  be  re- 
mitted or  mitigated  by  any  other  authority,  and  no  approved 
sentence  of  loss  of  files  by  an  officer  shall  be  remitted  or  miti- 
gated by  any  authority  inferior  to  the  President,  except  as  pro- 
vided in  the  fifty-second  article  of  war. 

When  empowered  by  the  President  so  to  do,  the  commanding 
general  of  the  Army  in  the  field,  or  the  commanding  general 
of  the  territorial  department  or  division,  may  approve  or  con- 
firm and  commute  (but  not  approve  or  confirm  without  com- 
muting), mitigate,  or  remit,  and  then  order  executed  as  com- 
muted, mitigated,  or  remitted,  any  sentence  which  under  the 
Articles  of  War  requires  the  confirmation  of  the  President 
before  the  same  may  be  executed. 

The  power  of  remission  or  mitigation  extends  to  all  un- 
collected  forfeitures  adjudged  by  sentence  of  court-martial. 
(A.  W.  50.) 

382.  MITIGATION  WHEN  PERMISSIBLE. — A  sentence  provid- 
ing for  dishonorable  discharge  only  can  not  be  mitigated; 
although  it  may  be  commuted  by  the  President.  Subject  to  the 
limitations  expressed  in  the  Executive  order  prescribing 
maximum  limits  of  punishment,  forfeiture  of  pay  adjudged 
by  a  court-martial  may  be  mitigated  to  detention  of  pay  for 
a  like  period,  or  less,  and  confinement  at  hard  labor  may  be 
mitigated  to  hard  labor  without  confinement  for  a  like 
period,  or  less.  A  sentence  of  dishonorable  discharge,  for- 
feiture of  all  pay  and  allowances  due  and  to  become  due, 
and  confinement  at  hard  labor  for  a  definite  period  may  be 
mitigated  to  a  lesser  punishment,  for  example,  to  confinement 
at  hard  labor  and  a  forfeiture  of  a  specified  portion,  for  ex- 
ample, two-thirds  of  the  soldiers'  pay  per  month  for  a  period 
not  exceeding  that  prescribed  in  the  sentence,  or  to  hard  labor 
without  confinement  for  a  definite  period  not  exceeding  the 
period  prescribed  in  the  sentence,  and  forfeiture  of  any  portion 
not  exceeding  two-thirds  of  the  soldier's  pay  per  month  for  a 
period  not  exceeding  that  prescribed  in  the  sentence. 

213588— 20 21 

319 


^    383  CHAPTER  XVI. 

383.  EFFECT  OF  REMISSION  AT  TIME  or  APPROVAL. — The 
action  of  a  reviewing  authority  in  approving  a  sentence  and 
simultaneously  remitting  a  portion  thereof  is  legally  equiva- 
lent to  approving  only  the  sentence  as  reduced.     (Bui.  12, 
p.  5,  War  Dept.,  1912.) 

384.  COMMUTATION   OF  SENTENCES. — The  power  to  com- 
mute sentences  imposed  by  military  tribunals,  not  being 
vested  in  military  commanders,  can  be  exercised  by  the  Presi- 
dent alone,  except  when  the  President  has  empowered  a  com- 
manding general  of  the  Army  in  the  field  or  the  commanding 
general  of  the  territorial  department  or  division  so  to  do  under 
A.  W.  50  in  certain  cases.     (See  par.  382.) 

385.  ADDING  TO   SENTENCES. — Neither  the  reviewing  au- 
thority nor  any  other  officer  is  authorized  to  add  to  the 
punishment  imposed  by  a  court-martial.     Where  post  orders 
classify  all  soldiers  at  a  post  according  to  their  conduct,  and 
provide  that  soldiers  undergoing  sentence  of  a  court-martial 
will  be  denied  pass  privileges  until  the  sentence  is  completed, 
such  a  provision  adds  to  the  punishment  and  is  unlawful. 
(BuL  46,  p.  7,  War  Dept.,  1914.) 

386.  SENTENCES  IN  EXCESS  OF  LEGAL,  LIMIT. — Where   a 
sentence  in  excess  of  the  legal  limit  is  divisible,  such  part 
as  is  legal  may  be  approved  and  executed.     (Digest,  p.  564, 
XIV,  E,  9  c.)      Thus:  WThen   a  sentence  to  confinement, 
hard  labor  without  confinement,  forfeiture,  or  detention  of 
pay  is  in  excess  of  the  legal  limit,  the  part  within  the  limit 
is  legal  and  may  be  executed. 

387.  ACTION  ON  SENTENCE  MAY  BE  MODIFIED  BEFORE  PUB- 
LICATION.— Action  taken  by  a  reviewing  officer  upon  the 
proceedings  and  sentence  of  a  court-martial  may  be  recalled 
and  modified  before  it  has  been  published  and  the  party  to 
be  affected  has  been  duly  notified  of  the  same.     After  such 
notice  the  action  is  beyond  recall.     An  approval  can  not 
then  be  substituted  for  a  disapproval  or  vice  versa.     (Digest, 
p.  565,  XIV,  E,  9  e.) 

388.  WHERE   CONVICTION   OF  DESERTION   Is  DISAPPROVED, 
GROUNDS  TO  BE  STATED. — Where  the  reviewing  authority  dis- 
approves a  sentence  for  desertion  he  should  indicate  in  his 
review  whether  his  disapproval  is  based  upon  his  belief  that 
the  evidence  does  not  show  an  intent  to  desert,  or  is  for 

320 


COURTS-MARTIAL — ACTION.  ^f    391 

some  other  reason  that  assumes  the  accused  was  guilty  as 
charged.  The  reason  for  so  indicating  the  grounds  of  his 
disapproval  is  to  enable  the  Finance  Department  to  decide 
whether  the  pay  and  allowances  due  at  date  of  alleged  de- 
sertion should  be  forfeited  and  whether  the  reward  paid 
for  apprehending  the  deserter  and  the  expenses  incurred 
by  the  Government  in  transporting  him  from  point  of  ap- 
prehension, delivery,  or  surrender  to  the  station  of  his 
company  or  detachment  or  to  the  place  of  trial,  including 
the  cost  of  transportation  of  the  guard,  should  be  set 
against  the  alleged  deserter's  pay,  under  A.  E.  127,  1913. 
(12  Comp.  Dec.  328;  15  idem.,  661.) 

389.  PLACE  OF  CONFINEMENT — CHANGE  OF. — The  authority 
which  has  designated  the  place  of  confinement  or  higher 
authority  may  change  the  place  of  confinement  of  any  pris- 
oner under  the  jurisdiction  of  such  authority;  but  when  a 
military  prison  or  post  has  been  designated  as  the  place  of 
confinement  of  a  prisoner  under  sentence,  no  power  is  com- 
petent to  increase  the  punishment  by  designating  a  peniten- 
tiary as  the  place  of  confinement. 

390.  Loss  OF  FILES. — Where  a  court-martial  convened  by 
a  corps  area  commander  or  other  officer  exercising  general 
court-martial  jurisdiction,  for  the  trial  of  an  officer  sentences 
the  accused  to  the  punishment  of  a  loss  of  files,  the  approval 
of  the  appointing  authority  is  sufficient  to  give  full  effect 
to  the  sentence,  and  no  action  by  superior  authority  can 
add  anything  to  its  effect  or  conclusiveness.     Confirmation 
by  the  President  is  not  essential  to  the  execution  of  such  a 
sentence;  and  the  fact  that  the  same  involves  a  change  in 
the  Army  Register  does  not  make  requisite  or  proper  a 
revision  of  the  case  by  the  War  Department,  except  as  pro- 
vided by  A.  W.  50y2.    The  corps  area,  or  other  commander, 
however,  can  not  restore  the  files;  such  action  can  be  taken 
only  by  the  President.     (See  A.  W.  50.) 

&91.  SUSPENSION  OF  SENTENCES  UNTIL  PLEASURE  OF  PRESI- 
DENT BE  KNOWN. — Any  officer  who  has  authority  to  carry 
into  execution  the  sentence  of  death,  or  of  dismissal  of  an 
officer,  may  suspend  the  same  until  the  pleasure  of  the  Presi- 
dent shall  be  known  j  and  in  such  case,  he  shall  immediately 

321 


If    392  CHAPTER  XVI. 

transmit  to  the  President  a  copy  of  the  order  of  suspension, 
together  with  a  copy  of  the  proceedings  of  the  court.  (A. 
W.  51.) 

392.  SUSPENSION  OF  SENTENCES. — The  authority  compe- 
tent to  order  the  execution  of  the  sentence  of  a  court-martial 
may,  at  the  time  of  the  approval  of  such  sentence,  suspend 
the  execution,  in  whole  or  in  part,  of  any  such  sentence  as 
does  not  extend  to  death,  and  may  restore  the  person  under 
sentence  to  duty  during  such  suspension;  and  the  Secretary 
of  War  or  the  commanding  officer  holding  general  court-martial 
jurisdiction  over  any  such  offender  may,  at  any  time  thereafter, 
while  the  sentence  is  being  served,  suspend  the  execution,  in 
whole  or  in  part,  of  the  balance  of  such  sentence  and  restore 
the  person  under  sentence  to  duty  during  such  suspension.     A 
sentence,  or  any  part  thereof,  which  has  been  so  suspended 
may  be  remitted,  in  whole  or  in  part,  except  in  cases  of  per- 
sons confined  in  the  United  States  Disciplinary  Barracks  or 
its  branches,  by  the  officer  who  suspended  the  same,  by  his 
successor  in  office,  or  by  any  officer  exercising  appropriate 
court-martial  jurisdiction  over  the  command  in  which  the 
person  under  sentence  may  be  serving  at  the  time,  and, 
subject  to  the  foregoing  exceptions,  the  same  authority  may 
vacate  the  order  of  suspension  at  any  time  and  order  the 
execution  of  the  sentence  or  the  suspended  part  thereof  in 
so  far  as  the  same  shall  not  have  been  previously  remitted, 
subject  to  like  power  of  suspension.    The  death  or  honorable 
discharge  of  a  person  under  suspended  sentence  shall  operate 
as  a  complete  remission  of  any  unexecuted  or  unremitted 
part  of  such  sentence.     (A.  W.  52.) 

393.  EXECUTION  OR  REMISSION — CONFINEMENT  IN  DISCI- 
PLINARY BARRACKS. — When  a  sentence  of  dishonorable  dis- 
charge has  been  suspended  until  the  soldier's  release  from 
confinement,  the  execution  or  remission  of  any  part  of  his 
sentence  shall,  if  the  soldier  be  confined  in  the  United  States 
Disciplinary  Barracks  or  any  branch  thereof,  be  directed  by 
the  Secretary  of  War.     (A.  W.  53.)      (See  Ch.  X,  Army  ap- 
propriation act  of  July  9,  1918;  40  Stat.,  883.) 

A.  W.  52  and  53  embody  in  court-martial  practice  the 
modern  principle  of  the  suspended  sentence.    This  principle 

322 


COURTS-MARTIAL — ACTION.  ^f    396 

is  of  peculiar  significance  in  Army  administration  in  time 
of  war,  since  it  not  only  enables  the  reviewing  authority  to 
extend  to  soldiers  an  opportunity  to  redeem  themselves  but 
also  serves  to  save  for  the  Army  the  highest  possible  per- 
centage of  the  man  power  of  the  Nation. 

394.  PLACE  or  CONFINEMENT  TO  BE  DESIGNATED  BY  REVIEW- 
ING AUTHORITY. — When  the  sentence  of  a  general  court- 
martial  prescribes  dishonorable  discharge  and  confinement, 
so  much  of  the  sentence  as  relates  to  confinement  will  be 
expressed  in  substantially  the  following  form: 

To  be  confined  at  hard  labor  at  such  place  as  the  reviewing  au- 
thority may  direct  for  — [leaving  to  the  reviewing  authority  the 

designation  of  the  place  of  confinement]. 

395.  FORMS  FOR  ACTION  ON  SENTENCE  BY  REVIEWING  AU- 
THORITY.—  (See  Appendix  15.) 

396.  WHEN  CONFINEMENT  IN  A  PENITENTIARY  MAY  BE 
DIRECTED. — Except  for  desertion  in  time  of  war,  repeated 
desertion  in  time  of  peace,  and  mutiny,  no  person  shall  under 
the  sentence  of  a  court-martial  be  punished  by  confinement 
in  a  penitentiary  unless  an  act  or  omission  of  which  he  is 
convicted  is  recognized  as  an  offense  of  a  civil  nature  and 
so  punishable  by  penitentiary  confinement  for  more  than  one 
year  by  some  statute  of  the  United  States,  of  general  applica- 
tion within  the  continental  United  States,  excepting  section  289, 
Penal  Code  of  the  "United  States,  1910,  or  by  the  law  of  the 
District  of  Columbia,  or  by  way  of  commutation  of  a  death 
sentence,  and  unless,  also,  the  period  of  confinement  author- 
ized and  adjudged  by  such  court-martial  is  more  than  one 
year:  Provided,  That  when  a   sentence  of  confinement  is 
adjudged  by  a  court-martial  upon  conviction  of  two  or  more 
acts  or  omissions  any  one  of  which  is  punishable  under  these 
articles  by  confinement  in  a  penitentiary,  the  entire  sentence 
of  confinement  may  be  executed  in  a  penitentiary :  Provided 
further,  That  penitentiary  confinement  hereby  authorized 
may  be  served  in  any  penitentiary  directly  or  indirectly 
under  the  jurisdiction  of  the  United  States:  Provided  fur- 
ther, That  persons  sentenced  to  dishonorable  discharge  and 
to  confinement  not  in  a  penitentiary  shall  be  confined  in  the 
United  States  Disciplinary  Barracks  or  elsewhere  as  the 

323 


f    397  CHAPTER  XVI. 

Secretary  of  War  or  the  reviewing  authority  may  direct, 
but  not  in  a  penitentiary.     (A.  W.  42.) 

NOTE. — For  a  full  statement  of  the  law  relating  to  penitentiary  con- 
finement, the  War  Department  policy  with  reference  to  the  segregation 
of  general  prisoners  convicted  of  offenses  punishable  with  penitentiary 
confinement  and  requirements  placed  upon  appointing  authorities  in 
stating  the  law  applicable  where  such  confinement  is  directed,  see 
Chapter  XIII,  Section  II,  paragraphs  337,  339,  and  341. 

397.  WHEN    CONFINEMENT    IN    DISCIPLINARY    BARRACKS 
WILL  BE  DIRECTED. — The  United  States  Disciplinary  Bar- 
racks at  Fort  Leavenworth,  Kans.,  or  one  of  its  branches  will 
be  designated  as  the  place  of  confinement  of  all  general  pris- 
oners other  than  residents  of  Porto  Kico,  the  Canal  Zone, 
Hawaiian  Islands,  or  the  Philippine  Islands  who  are  to  be 
confined  for  six  months  or  more  and  who  are  not  to  be  con- 
fined in  a  penitentiary  pursuant  to  the  preceding  paragraph. 
From  time  to  time  detailed  instructions  will  be  issued  as 
to  which  of  the  barracks  shall  be  designated  and  as  to  when 
the  prisoners  shall  be  transferred  to  them. 

398.  WHEN  CONFINEMENT  IN  POST  WILL  BE  DIRECTED. — 
A  military  post,  station,  or  camp  will  be  designated  as  the 
place  of  confinement  of  any  general  prisoner  whose  case  does 
not  come  within  the  terms  of  paragraphs  396  and  397  of 
this  section. 

399.  COOPERATION  OF  REVIEWING  AUTHORITIES. — The  suc- 
cessful segregation  of  general  prisoners  according  to  the 
grade  of  their  offense  as  prescribed  by  the  three  preceding 
paragraphs  must  depend  to  a  considerable  extent  upon  the 
cooperation  of  officers  exercising  general  court-martial  juris- 
diction.   The  demand  for  prison  labor  at  posts  is  not  deemed 
a  sufficient  reason  for  a  departure  from  the  rule  of  segre- 
gation prescribed. 

SECTION  II. 

APPELLATE  REVIEW. 

399a.  Review  of  General  Court-Martial  Cases  under  Article  of 
War  50%. —  (a)  Sentences  not  effective  until  acted  upon  by 
Board  of  Review  and  Judge  Advocate  General. — No  sentence 
requiring  approval  or  confirmation  by  the  President  under  the 
provisions  of  Article  of  War  46,  48,  or  51,  and,  except  as  here- 
inafter provided,  no  other  sentence,  which,  as  approved  or  con- 

324 


COURTS-MARTIAL — ACTION".  ^f    399a 

firmed  by  the  authority  having  power  to  direct  its  execution, 
involves  the  penalty  of  death,  dismissal  not  suspended,  dishonor- 
able discharge  not  suspended,  or  confinement  in  a  penitentiary, 
shall  be  carried  into  execution  or  ordered  executed  unless  and 
until  the  record  of  trial  has  been  acted  upon  by  the  Board  of 
Review  and  the  Judge  Advocate  General,  as  provided  in  Article 
of  War  5Ql/%',  except  that  the  proper  reviewing  or  confirming 
authority  may,  upon  his  approval  or  confirmation  of  a  sentence 
involving  dishonorable  discharge  or  confinement  in  a  peniten- 
tiary, order  its  execution  if  it  be  based  solely  upon  findings  of 
guilty  all  supported  by  pleas  of  guilty. 

(b)  Cases  requiring  approval  or  confirmation  by  the  President 
under  Articles  of  War  48,  48,  and  51. — In  every  case  in  which 
a  sentence  requires  approval  or  confirmation  by  the  President 
under  the  provisions  of  Article  of  War  46,  48,  or  51,  the  record 
of  trial,  transmitted  with  the  other  papers  in  the  case  as  pro- 
vided in  paragraphs  366  and  367,  supra,  will  be  examined  by 
the  Board  of  Review.     The  opinion  of  the  Board  of  Review  will 
be  submitted  in  writing  to  the  Judge  Advocate  General,  who 
will  transmit  the  record  and  the  Board's  opinion,  with  his  recom- 
mendations, directly  to  the  Secretary  of  War  for  the  action 
of  the  President  as  reviewing  or  confirming  authority  as  the 
case  may  be.    (See  pars.  377  and  379,  supra.) 

(c)  Death,   dismissal,    dishonorable   discharge,   and  peniten- 
tiary cases  not  included  in  subparagraph  (b). — In  every  case, 
not  included  in  the  provisions  of  the  preceding  subparagraph 
(b),  in  which  a  sentence,  as  approved  or  confirmed  by  the 
authority  having  power  to  direct  its  execution,  involves  the 
penalty   of  death,   dismissal  not   suspended,   dishonorable   dis- 
charge not  suspended,  or  confinement  in  a  penitentiary,  such 
authority,  in  entering  in  the  record  of  trial  his  action  thereon 
approving  or  confirming  such  sentence,  in  whole  or  in  part, 
will,   except  as  hereinafter  provided,   withhold  the   order   of 
execution  until  after  the  Board  of  Review  and  the  Judge  Advo- 
cate General  shall  have  passed  upon  the  legal  sufficiency  of  the 
record  to  support  the  sentence  as  thus  approved  or  confirmed; 
except  that  such  authority  may,  upon  his  approval  or  confirma- 
tion of  a  sentence  involving  dishonorable  discharge  or  confine- 
ment in  a  penitentiary,  order  its  execution  if  it  be  based  solely 


325 


If  399a  CHAPTER  xvi. 

upon  findings  of  guilty  all  supported  by  pleas  of  guilty.  Such 
action  approving  or  confirming  the  sentence  in  whole  or  in  part 
and  withholding  the  order  of  execution  will  be  entered  in  the 
record  of  trial  in  substantially  the  following  form,  the  necessary 
changes  being  made  to  conform  the  action  to  the  facts  of  each 
particular  case: 

Headquarters 

(Place) 

(Date) 

In  the  foregoing  case  of the  sentence  is  ap- 
proved   (or    confirmed),    (but    the    period    of    confinement    is 

reduced  to  ).     The  is  designated  as  the  place 

of  confinement.  Pursuant  to  the  provisions  of  Article  of  War 
50}£  applying  to  this  case,  the  execution  of  the  sentence  will 
not  be  ordered  until  the  Board  of  Review  and  the  Judge 
Advocate  General  shall  have  passed  upon  the  legal  sufficiency 
of  the  record  to  support  the  sentence. 

(Signature) 

(Rank) 

Commanding. 

The  record  of  trial  will  thereupon  be  transmitted  with  the 
other  papers  in  the  case,  as  provided  in  paragraph  367,  supra, 
directly  to  the  Judge  Advocate  General. 

Should  the  Board  of  Review,  with  the  approval  of  the  Judge 
Advocate  General,  hold  the  record  of  trial  legally  sufficient  to 
support  the  findings  and  sentence,  as  approved  or  confirmed,  the 
Judge  Advocate  General  will  so  advise  the  reviewing  or  con- 
firming authority  from  whom  the  record  was  received,  who  may 
thereupon  order  the  execution  of  such  sentence  (with  such  miti- 
gation, remission,  suspension,  or  commutation,  if  any,  as  he  may 
have  theretofore  directed  or  may  then  direct  under  A.  W.  47,  49, 
50,  or  52),  and  will  publish  the  general  court-martial  order. 
(See  par.  400,  infra.) 

Should  the  Board  of  Review,  with  the  concurrence  of  the 
Judge  Advocate  General,  hold  the  record  of  trial  legally  insuffi- 
cient to  support  the  findings  or  sentence  in  whole  or  in  part,  or 
that  errors  of  law  have  been  committed  injuriously  affecting 
the  substantial  rights  of  the  accused,  the  Judge  Advocate  Gen- 
eral will  so  advise  the  convening  authority  to  whom  the  record 
shall  be  transmitted  through  the  proper  channels  for  vacation  of 
such  findings  and  sentence  in  whole  or  in  part  by  such  convening 

326 


COURTS-MARTIAL — ACTION.  ^    399a 

authority  in  accord  with  such  holding  and  the  recommendations 
of  the  Judge  Advocate  General  thereon,  and  for  a  rehearing  (see 
par.  379%)  °r  Slic^  other  action  as  may  be  proper;  and  such 
authority  will,  unless  he  directs  a  rehearing,  publish  the  general 
court-martial  order  (see  par.  400,  infra). 

Should  the  Judge  Advocate  General  not  concur  in  the  holding 
of  the  Board  of  Review,  he  will  forward  the  record  of  trial  and 
all  other  papers  in  the  case,  including  the  opinion  of  the  Board 
of  Eeview  and  his  own  dissent  therefrom,  directly  to  the  Secre- 
tary of  War  for  the  action  of  the  President,  who  may  confirm  the 
action  of  the  reviewing  authority  or  confirming  authority  below, 
in  whole  or  in  part,  with  or  without  remission,  mitigation,  or  com- 
mutation, or  may  disapprove,  in  whole  or  in  part,  any  finding  of 
guilty,  and  may  disapprove  or  vacate  the  sentence,  in  whole  or  in 
part  (A.  W.  50y2),  and  will  order  accordingly;  and,  in  the  event 
the  President  shall  disapprove  the  sentence,  he  may  authorize  or 
direct  a  rehearing  in  accordance  with  the  provisions  of  Article  of 
War  50^.  (See  pars.  377  (c)  and  379  (c),  supra.) 

After  such  action  of  the  President  shall  have  been  taken,  the 
record  of  trial,  together  with  such  action,  will  be  returned  to  the 
Judge  Advocate  General,  who  will,  unless  a  rehearing  has  been 
authorized  or  directed  by  the  President,  notify  the  reviewing  or 
confirming  authority  of  the  President's  action,  and  the  review- 
ing or  confirming  authority  will  thereupon  promulgate  the  action 
of  the  President,  and  direct  execution  accordingly.  If  the  Presi- 
dent authorizes  or  directs  a  rehearing,  the  Judge  Advocate  Gen- 
eral will  also  transmit  the  record  of  trial  to  the  reviewing  or  con- 
firming authority  for  his  further  proper  action  in  accordance 
with  the  action  of  the  President. 

(d)  All  other  cases. — Every  record  of  trial  by  general  court- 
martial,  examination  of  which  by  the  Board  of  Review  is  not  in 
this  paragraph  hereinbefore  provided  for,  shall  be  examined  in 
the  Judge  Advocate  General's  office  and,  if  found  legally  insuffi- 
cient to  support  the  findings  of  guilty  and  the  sentence,  in  whole 
or  in  part,  shall  be  examined  by  the  Board  of  Eeview.  The  Board 
of  Eeview,  if  it  also  finds  that  such  record  is  legally  insufficient  to 
support  the  findings  of  guilty  and  the  sentence,  in  whole  or  in 
part,  shall  submit  its  opinion  in  writing  to  the  Judge  Advocate 
General,  who  shall  transmit  the  record  and  the  Board's  opinion, 

327 


If  399a  CHAPTER  xvi. 

with  his  recommendations,  directly  to  the  Secretary  of  War,  for 
the  action  of  the  President.  In  any  such  case  the  President  may 
approve,  disapprove,  or  vacate,  in  whole  or  in  part,  any  findings 
of  guilty,  or  confirm,  mitigate,  commute,  remit,  or  vacate  any 
sentence  in  whole  or  in  part,  and  direct  the  execution  of  the 
sentence  as  confirmed  or  modified ;  and  he  may  restore  the  accused 
to  all  rights  affected  by  the  findings  and  sentence  or  part  thereof 
held  by  him  to  be  invalid ;  and  the  President's  necessary  orders  to 
this  end  shall  be  binding  upon  all  dspartments  and  ofiicers  of  the 
government  (A.  W.  50y2). 

NOTE. — Article  of  War  50%  provides  that  the  Judge  Advocate 
General  shall  constitute  in  his  office  a  Board  of  Review  consisting  of 
not  less  than  three  officers  of  the  Judge  Advocate  General's  Depart- 
ment; that,  whenever  necessary,  the  Judge  Advocate  General  may 
constitute  two  or  more  Boards  of  Review  in  his  office,  with  equal 
powers  and  duties;  that  the  President,  whenever  he  deems  such 
action  necessary,  may  direct  the  Judge  Advocate  General  to  establish 
a  branch  of  his  office,  under  an  assistant  Judge  Advocate  General, 
with  any  distant  command,  and  to  establish  in  such  branch  office  a 
Board  of  Review  or  more  than  one;  and  that  such  assistant  Judge 
Advocate  General  and  such  Board  or  Boards  of  Review  in  a  branch 
office  shall  be  empowered  to  perform  for  that  command,  under  the 
general  supervision  of  the  Judge  Advocate  General,  the  duties  which 
the  Judge  Advocate  General  and  the  Board  or  Boards  of  Review  in 
his  office  would  otherwise  be  required  to  perform  in  respect  of  all 
cases  involving  sentences  not  requiring  approval  or  confirmation  by 
the  President.  The  words  "  Board  of  Review "  and  "  Judge  Advo- 
cate General "  as  used  in  this  Manual  will  be  deemed  to  refer,  re- 
spectively, to  a  Board  of  Review  established  in  a  branch  of  the  office 
of  the  Judge  Advocate  General  and  to  an  Assistant  Judge  Advocate 
General,  in  cases  within  a  command  where  such  branch  office  is 
established,  except  cases  requiring  approval  or  confirmation  by  the 
President. 

NOTE  1. — In  all  cases  in  which  the  order  of  execution  is  with- 
held under  any  of  the  provisions  of  Article  of  War  50^,  the  staff 
Judge  advocate,  before  transmitting  the  record  of  trial  to  the  Judge 
Advocate  General,  will  take  therefrom  the  data  necessary  for  draft- 
ing a  general  court-martial  order. 

NOTE  2. — When  under  the  provisions  of  A.  W.  50^  the  Judge 
Advocate  General  advises  the  reviewing  or  confirming  authority  of 
the  holding  of  the  Board  of  Review,  and  his  concurrence  therein,  he 
may  in  a  separate  communication,  for  reasons  stated  therein,  advise 
such  reviewing  or  confirming  authority  (1)  that  he  deems  the  sen- 
tence unnecessarily  severe,  or  (2)  that  in  his  opinion  one  or  more  of 
the  findings  of  guilty  should  be  disapproved. 

328 


COURTS-MARTIAL — ACTION".  ^f    401 

400.  COURT-MARTIAL  ORDERS. — Trials  by  general  courts- 
martial,  including  so  much  of  the  proceedings  as  will  give 
the  charges  and  specifications,  the  pleas,  findings,  and  sen- 
tence, or  acquittal,  and  the  action  of  the  reviewing  authority, 
and  of  the  confirming  authority,  if  any,  and  also  of  the  Board  of 
Review  and  the  Judge  Advocate  General,  in  cases  requiring  their 
action  under  A.  W.  50%,  and  of  the  President  if  his  action 
thereon  be  required  by  A.  W.  48,  50y2,  or  51,  will  be  announced 
in  general  court-martial  orders  issued  from  the  War  De- 
partment or   from    other   headquarters    exercising   general 
court-martial  jurisdiction.     If  the  charges  contain  matter 
which  for  any  reason  is  unfit  for  publication,  such  matter 
will  be  omitted  from  the  order,  but,"  in  case  of  final  convic- 
tion, a  copy  thereof  will  be  promptly  furnished  by  the  re- 
viewing authority  to  the  commanding  officer  of  the  post  at 
which  the  accused  is  stationed    (or,  if  in  arrest   or  confine- 
ment, at  which  lie  is  being  so  held  in  arrest  or  confinement), 
to  be  included  with  the  papers  required  to  be  sent  to  the 
commanding  officer  of  the  post  or  other  place  where  the  sen- 
tence is  to  be  executed.    Trials  by  special  courts-martial  will 
also  be  published  in  orders  similar  in  form  to  general  court- 
martial  orders.    (For  forms,  see  Appendix  11.) 

A  copy  of  the  special  court-martial  order  will  be  for- 
warded to  The  Adjutant  General  of  the  Army  by  the  adju- 
tant of  the  command  with  the  memorandum  of  transmittal  of 
report  of  changes  for  the  day  upon  which  the  order  is  pub- 
lished, for  file  with  the  "record  of  the  accused. 

SECTION  III. 
ACTION  AFTER  PROMULGATION   OF   SENTENCE. 

401.  DATE  OF  BEGINNING  or  SENTENCE. —  (a)  The  order  pro- 
mulgating the  proceedings  of  the  court  will  be  of  the  date  that  the 
reviewing  or  confirming  authority  takes  final  action  on  the  case. 
The  order  of  promulgation  of  a  sentence  of  confinement  ordered  to 
be  executed  will  state  the  date  upon  which  such  sentence  was  an- 
nounced in  open  court;  or  where,  in  exceptional  cases,  the  same 
was  not  announced,  the  order  will  state  the  date  upon  which  the 
sentence  of  confinement  was  adjudged  by  the  court.    Such  date 

329 


^f    402  CHAPTER  XVI. 

will  mark  the  beginning  of  the  sentence  of  confinement,  whether 
the  accused  had  then  been  placed  in  confinement  or  not.  A  sen- 
tence of  confinement,  hard  labor  without  confinement,  restriction 
to  limits,  or  deprivation  of  privileges,  is  continuous  until  the 
term  expires,  except  where  the  person  undergoing  such  sent- 
ence is  absent  without  authority,  or  under  a  parole  which 
proper  authority  has  revoked,  or  is  delivered  to  the  civil 
authorities  under  A.  W.  74.  When  the  reviewing  or  confirming 
authority  takes  final  action  upon  the  case  it  is  proper  for  him  to 
consider  any  period  of  confinement  served  by  the  accused  prior 
to  and  during  the  trial,  and  in  a  proper  case  to  make  it  the  basis 
of  mitigation  of  the  sentence. 

(b)  When  soldiers,  or  other  persons  subject  to  military  law, 
awaiting  the  result  of  trial  or  undergoing  sentence,  commit 
offenses  for  which  they  are  tried,  the  second  sentence  will  be 
executed  upon  the  expiration  of  the  first,  except  that  when 
the  first  sentence  does  not  involve  confinement,  and  the  second 
sentence  does  involve  hard  labor  with  confinement,  the  second 
sentence  will  take  precedence.  If  a  soldier,  while  awaiting 
the  result  of  a  trial  that  terminates  in  a  sentence  of  confine- 
ment without  dishonorable  discharge,  or  while  undergoing 
a  sentence  of  confinement  without  dishonorable  discharge, 
is  tried  for  a  further  offense  and  sentenced  to  confinement 
without  dishonorable  discharge,  the  period  of  confinement 
imposed  by  the  second  sentence  will  be  executed  upon  the 
expiration  of  the  period  of  confinement  imposed  by  the  first ; 
but  if  the  second  sentence  imposed  confinement  with  dishon- 
orable discharge  (whether  or  not  the  dishonorable  discharge 
be  suspended),  the  period  of  confinement  on  the  first  sen- 
tence will  be  regarded  as  having  terminated  upon  the  date 
the  second  sentence  takes  effect,  leaving  to  be  executed  only 
the  confinement  imposed  by  the  second  sentence. 

402.  APPLICATIONS  FOR  CLEMENCY. — The  power  to  remit  or 
mitigate  punishment  imposed  by  a  court-martial,  vested  in 
the  authority  who  appointed  the  court  or  the  corresponding 
authority  under  whose  jurisdiction  the  sentence  is  being  exe- 
cuted, extends  only  to  unexecuted  portions  of  a  sentence.  If 
the  punishment  be  one  imposed  by  a  general  court-martial,  it 
may  be  remitted  or  mitigated  only  by  an  officer  competent  to 

330 


COURTS-MARTIAL — ACTION.  ^f    404 

order  a  general  court-martial  and  under  whose  jurisdiction 
the  sentence  is  being  executed,  exclusive  of  penitentiaries  and 
the  United  States  Disciplinary  Barracks,  or  any  branch  thereof, 
or  by  superior  military  authority.  (A.  W.  50,  and  see  pars.  381- 
383,  supra.)  The  fact  that  a  soldier  or  other  person  subject  to 
military  law  has  been  dishonorably  discharged  or  dismissed 
through  his  sentence  does  not  affect  this  power.  An  appli- 
cation for  clemency  in  case  of  a  prisoner  sentenced  to  con- 
finement in  a  penitentiary  or  in  the  United  States  Disciplin- 
ary Barracks  or  any  branch  thereof  will  be  forwarded  to  The 
Adjutant  General  of  the  Army  for  the  action  of  the  Secre- 
tary of  War  and  the  President.  A  military  prisoner  sen- 
tenced to  confinement  in  a  penitentiary  or  in  the  United 
States  Disciplinary  Barracks  or  any  branch  thereof  will,  so 
far  as  concerns  the  exercise  of  clemency,  be  considered  to 
have  passed  beyond  the  jurisdiction  of  the  department  or 
other  commander  from  the  date  of  the  approval  of  his  sen- 
tence. 

NOTE. — For    power    to    commute    sentences,    see    paragraph    384, 
supra. 

403.  REMISSION  OF  SUSPENDED   SENTENCE  OF  DISHONOR- 
ABLE DISCHARGE. — Requests  to  remit  the  dishonorable  dis- 
charge under  a  suspended  sentence  of  dishonorable  discharge 
are  requests  for  clemency,  and  will  be  made  to  the  authority 
empowered  to  extend  clemency. 

404.  CLEMENCY  APPLICATIONS  LIMITED  TO   ONE  IN    Six 
MONTHS. — It  appearing  that  the  expenditure  of  much  un- 
necessary time  and  labor  is  involved  in  the  reexamination  in 
the  War  Department  upon  further  applications  for  clemency 
of  cases  relating  to  military  prisoners  which  have  received 
recent  and  thorough  consideration  in  connection  with  prior 
applications,  the  Secretary  of  War  has  directed  that  where 
such  further  application  is  received  at  the  War  Department 
within  six  months  of  such  prior  consideration  the  case  will 
not  be  reexamined  unless  there  be  set  forth  in  the  application 
new  and  material  reasons  for  the  granting  of  clemency,  but 
that  the  applicant  will  be  advised  of  the  recent  consideration 
and  of  the  action  had  thereon. 


331 


CHAPTER  XVII. 
PUNITIVE  ARTICLES  OF  WAR. 


Section  I.  Enlistment — Muster — Returns: 

405.  Fifty-fourth  article  of  war 337 

I.  Fraudulent  enlistment . . 338 

406.  Fifty-fifth  article  of  war 3HS 

I.  Officers  making  unlawful  enlistment  or  muster  in 339 

407.  Fifty-sixth  article  of  war 339 

I.  Making  false  muster 340 

II.  Signing,  etc.,  false  muster  rolls 340 

III.  Taking  money,  etc.,  on  muster  or  signing  muster 

rolls 340 

IV.  Mustering  as  an  officer  or  soldier  one  who  is  not 341 

408.  Fifty-seventh  article  of  war 341 

I.  Making  false  returns 342 

II.  Omitting  to  render  returns- 342 

Section  II.  Desertion — Absence  without  leave: 

409.  Fifty-eighth  article  of  war 342 

I.  Desertion 344 

II.  Attempting  to  desert - 345 

410.  Fifty-ninth  article  of  war__ 346 

I.  Advising  desertion 347 

II.  Persuading  desertion 347 

III.  Assisting  desertion 347 

411.  Sixtieth  article  of  war 348 

I.  Retaining  a  deserter 348 

412.  Sixty-first  article  of  war—. 348 

I.  Absence  without  leave 349 

Section  III.  Disrespect — Insubordination — Mutiny  : 

413.  Sixty-second  article  of  war 350 

I.  Disrespect  toward  the  President,  etc 331 

414.  Sixty-third  article  of  war 351 

I.  Disrespect  toward  a  superior  officer 352 

415.  Sixty-fourth  article  of  war 353 

I.  Assaulting  a  superior  officer 354 

II.  Disobeying  a  superior  officer 355 

332 


PUNITIVE  ARTICLES   OF  WAR. 

Section    III.  Disrespect — Insubordination — Mutiny — Continued,  page. 

416.  Sixty-fifth  article  of  war 356 

I.  Assaulting  a  warrant  officer  or  a  noncommissioned 

officer 357 

II.  Disobeying  a  warrant  officer  or  a  noncommissioned 

officer 358 

III.  Using  threatening  or  insulting  language  or  behav- 
ing in  an  insubordinate  or  disrespectful  manner 
toward  a  warrant  officer  or  a  noncommissioned 

officer 358 

417.  Sixty-sixth  article  of  war 359 

I.  Attempting  to  create  a  mutiny  (or  sedition) 359 

II.  Beginning  a  mutiny  or  sedition 360 

III.  Joining  in  a  mutiny  or  sedition 360 

IV.  Exciting  a  mutiny  or  sedition 361 

V.  Causing  a  mutiny  or  sedition 361 

418.  Sixty-seventh  article  of  war 361 

I.  Failure  to  suppress  mutiny  or  sedition 361 

II.  Failure  to  give  information  of  mutiny  or  sedition.  362 

419.  Sixty-eighth  article  of  war 363 

I.  Disobedience  of  orders  into  arrest  or  confinement-  364 

II,  III,  IV.  Threatening,  drawing  a  weapon  upon,  or 

offering  violence  to,  an  officer,  member  of  the 

Army   Nurse  Corps,  warrant  officer,  Army  field 

clerk,    field    clerk   Quartermaster    Corps,    band 

leader,  or  noncommissioned  officer 365 

Section  IV.  Arrest — Confinement: 

420.  Sixty-ninth  article  of  war 365 

I.  Breach  of  arrest 366 

II.  Escape  from  confinement 366 

420}.  Seventieth  article  of  war 367 

I,  Unnecessary  delay  in  investigating  charges  against 

an  accused  in  arrest  or  confinement 368 

II.  Unnecessary  delay  in  carrying  a  case  to  a  final  con- 
clusion where  an  accused  is  placed  in  arrest  or 

confinement 369 

421.  Seventy-first  article  of  war 369 

I.  Refusing  to  receive  or  keep  prisoners 370 

422.  Seventy-second  article  of  war 370 

I.  Failure  to  render  report  as  prescribed 371 

423.  Seventy-third  article  of  war 371 

I.  Releasing  a  prisoner  without  proper  authority 372 

II.  Suffering  a  prisoner  to  escape  through  neglect 373 

III.  Suffering  a  prisoner  to  escape  through  design 373 


333 


CHAPTER  XVII. 

Section  IV.  Arrest — Confinement — Continued.  Page. 

424.  Seventy-fourth  article  of  war 374 

I.  Refusing  or  willfully  neglecting  to  deliver  an  ac- 
cused person 374 

II.  Refusing  or  willfully  neglecting  to  aid  in  appre- 
hending and  securing  an  accused  person 375 

Section  V.  War  offenses: 

425.  Seventy-fifth  article  of  war 377 

I.  Misbehavior  before  the  enemy 378 

II.  Running  away  before  the  enemy ; 378 

III.  Shamefully  abandoning  or  delivering  up  any  com- 

mand   878 

IV.  Endangering  the  safety  of  any  command  by  any  (1) 

misconduct,   (2>  disobedience,  or   (3)  neglect 379 

V.  Speaking  words  inducing  others  to  so  misbehave, 
run  away,  or  abandon  or  deliver  up,  or  endanger 

the  safety  of  any  command 379 

VI.  Casting  away  arms  or  ammunition 380 

VII.  Quitting  post  or  colors  to  plunder  or  pillage 380 

VIII.  Occasioning  false  alarms 381 

426.  Seventy-sixth  article  of  war 382 

I.  Compelling   commander   to    surrender 382 

II.  Attempting  to  compel  commander  to  surrender 883 

427.  Seventy-seventh  article  of  war 883 

I.  Making  known  parole  or  countersign 383 

II.  Giving  different  parole  or  countersign 384 

428.  Seventy-eighth  article  of  war 384 

I.  Forcing  a  safeguard 885 

429.  Seventy-ninth  article  of  war 385 

I.  Neglecting  to  secure  captured  public  property 385 

II.  Wrongful      appropriation      of     captured     public 

property   886 

430.  Eightieth  article  of  war 386 

I.  Dealing  in  captured  or  abandoned  property 887 

II.  Failure  or  delay  in  reporting  receipt  of  captured 

or  abandoned  property 888 

431.  Eighty-first  article  of  war 888 

I.  Relieving  the  enemy 889 

II.  Attempting  to  relieve  the  enemy 889 

III.  Harboring  or  protecting  the  enemy 389 

IV.  Holding  correspondence  with  the  enemy 390 

V.  Giving  intelligence  to  the  enemy 890 

432.  Eighty-second  article  of  war 391 

I.  Being   a   spy 891 

Section  VI.  Miscellaneous  crimes  and  offenses: 

433.  Eighty-third  article  of  war 392 

I.  Suffering  military  property  to  be  lost,  etc 893 

334 


PUNITIVE  ARTICLES  OF  WAR. 

Section  VI.  Miscellaneous  crimes  and  offenses — Continued. 

434.  Eighty-fourth  article  of  war 394 

I.  Selling     or     wrongfully     disposing     of     military 

property   395 

II.  Willfully  or  through  neglect  injuring  or  losing  mili- 
tary  property 395 

435.  Eighty-fifth  article  of  war 396 

I.  Being  found  drunk  on  duty 398 

436.  Eighty-sixth  article  of  war 398 

I.  Being  found  drunk  on  post 399 

II.  Being  found  sleeping  on  post 399 

III.  Leaving  post  before  being  relieved 400 

437.  Eighty-seventh  article  of  war 400 

I.  Laying  a  duty  or  imposition  upon  the  bringing  in 

of  victuals,  etc 401 

II.  Being  interested  in  the  sale  of  victuals,  etc 401 

438.  Eighty-eighth  article  of  war 402 

I.  Intimidating,  etc.,  persons  bringing  necessaries 402 

439.  Eighty-ninth  article  of  war 403 

I.  Committing  waste  or  spoil 403 

II.  Willfully  destroying  property 404 

III.  Committing  depredation  or  riot 404 

IV.  Refusing  or  omitting  to  see  reparation  made 405 

440.  Ninetieth  article  of  war 405 

I.  Using  provoking  speeches  or  gestures 405 

441.  Ninety-first  article  of 'war 406 

I.  Fighting  or  promoting  a  duel 406 

II.  Being  concerned  in  or  conniving  at  fighting  a  duel-  407 

III.  Failing  to  report  knowledge  of  a  challenge 407 

442.  Ninety-second  article  of  war 407 

I.  Murder 408 

II.  Rape 411 

443.  Ninety-third  article  of  war 413 

I.  Manslaughter ._  414 

II.  Mayhem 415 

III.  Arson 416 

IV.  Burglary 418 

V.  Housebreaking 420 

VI.  Robbery 422 

VII.  Larceny 424 

VIII.  Embezzlement 430 

IX.  Perjury 432 

X.  Forgery 435 

XL  Sodomy 439 

21358°— 20 22 


835 


CHAPTER  XVH. 

Section  VI.  Miscellaneous  crimes  and  offenses — Continued. 

443.  Ninety-third  article  of  war—Continued,  rage. 
XII.  Assault  with  intent  to  commit  any  felony 435) 

1.  Assault  with  intent  to  murder 443 

2.  Assault  with  intent  to  commit  manslaugh- 

ter        444 

3.  Assault  with  intent  to  commit  rape 444 

4.  Assault  with  intent  to  rob 44." 

5.  Assault  with  intent  to  commit  sodomy 415 

XIII.  Assault  with  intent  to  do  bodily  harm  with  a  dan- 

gerous weapon,  instrument,  or  other  thing 447 

XIV.  Assault  with  intent  to  do  bodily  harm 447 

444.  Ninety-fourth  article  of  war 448 

I.  Making  or  causing  to  be  made  a  false  or  fraud- 
ulent   claim 450 

II.  Presenting  or  causing  to  be  presented  for  ap- 
proval or  payment  a  false  or  fraudulent 

claim 451 

III.  Entering  into  an  agreement  or  conspiracy  to  de- 
fraud the  United  States  through  false  claims.      452 
IV.  Making,  using,  procuring,  or  advising  the  mak- 
ing or  use  of  a  false  writing  or  other  paper  in 

connection  with  claims 453 

V.  False  oath  in  connection  with  claims 454 

VI.  Forgery,  etc.,  of  signature  in  connection  with 

claims 454 

VII.  Delivering  less  than  amount  called  for  by  re- 
ceipt        454 

VIII.  Making  or  delivering  receipt  without  having 

knowledge  that  the  same  is  true 455 

IX.  Embezzlement,  misappropriation,  sale,  etc.,  of 

military  property 456 

X.  Purchasing  or  receiving  in  pledge  of  military 

property - 458 

XI.  Former  officer  guilty,  while  he  was  in  service, 
of  embezzlement  of  ration  savings,  post  ex- 
change, company,  or  other  like  funds,  or  of 
money  or  other  property  entrusted  to  him  by 
enlisted  men 459 

445.  Ninety-fifth  article  of  war ! 459 

I.  Conduct  unbecoming  an  officer  and  a  gentleman —      461 

446.  Ninety-sixth  article  of  war 461 

I.  Disorders  and  neglects  to  the  prejudice  of  good  or- 
der and  military  discipline 461 

..II.  Conduct  of  a  nature  to  bring  discredit  upon  the 

military  service 462 

III.  Crimes  or  offenses  not  capital 463 

336 


PUNITIVE  ARTICLES  OF  WAR.  ^    405 

SECTION  I. 
ENLISTMENT— MUSTER— RETURNS. 

405.  Fifty- fourth  Article  of  War: 

Any  person  who  shall  procure  himself  to  be  enlisted  in  the  military 
service  of.  the  United  States  by  means  of  willful  misrepresentation 
or  concealment  as  to  his  qualifications  for  enlistment,  and  shall  re- 
veive  pay  or  allowance*  under  irach.  enlistment,  shall  be  imalshed  as  a 
court -tuartial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

A  fraudulent  enlistment  is  an  enlistment  procured  by 
means  of  a  willful  misrepresentation  in  regard  to  a  quali- 
fication or  disqualification  for  enlistment,  or  by  intentional 
concealment  of  a  disqualification  which  has  had  the  effect 
of  causing  the  enlistment  of  a  man  not  qualified  to  be  a  sol- 
dier and  who  but  for  such  false  representation  or  conceal- 
ment would  have  been  rejected. 

Willful  means  intentional,  thus  excluding  cases  of  mis- 
take or  forgetfulness. 

Misrepresentation  and  concealment  include  any  act,  state- 
ment, or  omission,  however  made,  which  has  the  effect  of 
conveying  an  untruth  or  concealing  the  truth  concerning  the 
applicant's  qualifications  or  disqualifications  for  enlistment. 

The  misrepresentation  or  concealment  may  be  in  mat- 
ters which  are  designed  to  open  the  door  to  inquiry  concern- 
ing the  qualifications  or  disqualifications  for  enlistment,  such 
as  questions  aa  to  previous  service,  previous  applications  for 
enlistment,  etc. 

The  qualifications  or  disqualifications  may  be  prescribed 
by  iaw,  regulations,  or  orders. 

Answers  to  questions  having  no  bearing  on  the  appli- 
cant's qualifications  for  enlistment,  such  as  questions  as  to 
applicant's  name,  address,  or  immaterial  statements  as  to 
age,  are  not  sufficient. 

ANALYSIS  AND  PROOF. 

The  article  applies  only  to  enlisted  men. 

The  article  defines  one  offense,  i.  e.,  fraudulent  enlistment. 


337 


Tf    406  CHAPTER  XVII. 

I.   FRAUDULENT   ENLISTMENT. 
PROOF. 

(a)  The  enlistment  of  the  accused  in  the  military  service 
as  alleged. 

(&)  That  the  accused  willfully  misrepresented  a  certain 
fact  or  facts  regarding  his  qualifications  or  disqualifications 
for  enlistment,  or  willfully — that  is,  intentionally — con- 
cealed a  disqualification,  as  alleged. 

(c)  That  enlistment  was  procured  by  such  misrepresenta- 
tion or  concealment. 

(d)  That  under  such  enlistment  the  accused  received  either 
pay  or  allowances,  or  both,  as  alleged. 

(e)  Where   a   soldier  enlists   without  a   discharge    (see 
A.  W.  28),  the  proof  should  include  the  fact  that  at  the  time 
of  the  alleged  enlistment  the  accused  was  a  soldier,  and  that 
the  enlistment  was  entered  into  without  a  regular  discharge 
from  the  former  enlistment. 

406.  Fifty-fifth  Article  of  War: 

Any  officer  who  knowingly  enlists  or  musters  into  the  military 
service  any  person  whose  enlistment  or  muster  in  is  prohibited  by 
law,  regulations,  or  orders  shall  be  dismissed  from  the  service  or 
suffer  such,  other  punishment  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

See  the  terms  of  the  article. 

The  prohibited  enlistment  must  be  knowingly  made,  i.  e., 
it  must  be  shown  that  the  accused  knew  that  the  person  en- 
listed or  mustered  in  by  him  was  within  the  prohibited  class. 

Knowingly  includes  not  only  a  certainty  of  belief  but  also 
such  a  degree  of  belief  as  the  ordinarily  prudent  man  acts 
upon. 

The  enlistment  or  muster  in  of  the  person  must  be  at  the 
time  prohibited  by  law  or  by  regulations  or  orders  that  were 
operative  as  to  the  accused. 

This  excludes  cases  where  the  enlistment  or  muster  in  was 
prohibited  by  regulations  or  orders  of  the  existence  of  which 
the  accused  was  not  aware  or  at  the  time  chargeable  with 
knowledge. 

338 


PUNITIVE  ARTICLES  OF  WAR.  ^f    407 

ANALYSIS  AND  PKOOF. 

The  article  applies  only  to  commissioned  officers.  While 
members  of  the  Army  Nurse  Corps,  warrant  officers,  Army  field 
clerks,  and  field  clerks  Quartermaster  Corps  are  officers,  they 
are  not  commissioned  officers,  and  hence,  as  the  word  "  officer  " 
used  in  this  article  is  used  in  a  penal  statute,  it  must  be  con- 
strued strictly  to  mean  a  commissioned  officer.  Should  any  of 
the  aforementioned  persons  subject  to  military  law  commit  acts 
which  if  done  by  a  commissioned  officer  would  be  an  offense 
under  this  article,  they  should  be  charged  under  A.  W.  &6. 

The  article  defines  two  offenses  which  may  be  treated  under 
one  heading,  as  follows : 

i.   Officer  making  UNLAWFUL  ENLISTMENT    (OR  MUSTER  IN). 

PROOF. 

(a)  The  enlistment  or  muster  in  by  the  accused  commis- 
sioned officer  of  the  person  named,  as  alleged. 

(b)  That  such  person  was  within  the  classes  whose  enlist- 
ment or  muster  in  were  prohibited  at  the  time  of  such  enlist- 
ment or  muster  in. 

(c)  That  the  accused  knew  this  at  the  time  of  the  enlist- 
ment or  muster  in  of  such  person. 

407.  Fifty-sixth  Article  of  War. 

Any  officer  who  knowingly  makes  a  false  muster  of  man  or  animal, 
or  who  signs  or  directs  or  allows  the  signing  of  any  master  roll 
knowing  the  same  to  contain  a  false  master  or  false  statement  as  to 
the  absence  or  pay  of  an  officer  or  soldier,  or  who  wrongfully  takes 
money  or  other  consideration  on  mastering  in  a  regiment,  company, 
or  other  organization,  or  on  signing  master  rolls,  er  who  knowingly 
musters  as  an  officer  or  soldier  a  person  who  is  not  such  officer  or 
soldier,  shall  be  dismissed  from  the  service  and  suffer  such  other 
punishment  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

See  the  terms  of  the  article  for  requirements  as  to  muster 
rolls  and  definition  of  the  offenses. 

Muster  has  been  defined  as  the  assembling,  inspecting,  en- 
tering upon  the  formal  rolls,  and  officially  reporting  as  a 
component  part  of  the  command  of  persons  or  public  ani- 
mals. (Winthrop,  p.  852.) 


^[407  CHAPTEE  XVII. 

ANALYSIS  AND  PROOF. 

The  article  .applies  only  to  commissioned  officers.  (See  com- 
ments tinder  A.  W.  55.) 

The  article  defines  a  number  of  offenses  which  may  be 
treated  under  the  following  heads : 

I.  Making  false  muster. 

II.  Signing,  directing,  or  allowing  the  signing  of  false 
muster  rolls. 

III.  Taking  money  or  other  consideration  on  muster  or 
signing  muster  rolls. 

IV.  Mustering  as  an  officer  or  soldier  one  who  is  not. 

I.    MAKING  FALSE  MUSTER. 
PROOF. 

(a)  That  the  muster  of  a  certain  man  or  animal  was  made 
by  the  accused  officer,  as  alleged. 

( b)  That  the  muster  was  false  as  alleged. 

(c)  That  the  accused  officer  knew  this  at  the  time  of  mak- 
ing the  muster. 

n.    SIGNING,   DIRECTING,   OR    ALLOWING   THE    SIGNING    OF   FALSE 
MUSTER  ROLLS. 

PEOOF. 

(a)  That  the  accused  officer  signed  the  muster  roll  or  di- 
rected or  allowed  the  signing  of  the  muster  roll  as  alleged. 

(&)  That  such  muster  roll  was  false  in  certain  particulars 
as  alleged. 

(c)  That  the  accused  officer  knew  this  at  the  time  he  signed 
the  roll  or  directed  or  allowed  it  to  be  signed  as  alleged. 

III.    TAKING    MONEY    OR    OTHER    CONSIDERATION    ON    MUSTER    OR 
SIGNING  MUSTER  ROLLS. 

PEOOF. 

(a)  That  the  accused  officer  made  the  muster  of  the  or- 
ganization or  signed  the  muster  rolls  as  alleged. 

340 


PUNITIVE  ARTICLES  OF  WAR.  *§    408 

(5)  That  he  accepted  money  or  other  consideration  as  a 
compensation  or  reward  for  making  the  muster  or  signing  the 
muster  rolls. 

(c)  That  the  taking  of  such  money  or  other  consideration 
was  wrongful — that  is,  without  legal  excuse. 

IV.  MUSTERING  AS  AN  OFFICER  OR  SOLDIER  ONE  WHO  IS  NOT. 


PEOOP. 

(a)  That  the  accused  officer  mustered  as  an  officer  or  soldier 
a  certain  person,  as  alleged. 

(b)  That  the  person  so  mustered  was  not  such  officer  or 
soldier. 

(c)  That  the  accused  knew  this  when  he  made  the  muster. 

408.  Fifty-seventh  Article  of  War: 

Every  officer  whose  fluty  ft  is  to  render  to  the  War  Depart- 
ment or  ether  superior  authority  a  return  of  the  state  of  the 
troops  natter  his  command,  or  of  the  arms*,  ammunition,  cloth- 
ing;, fund*,  or  other  property  thereunto  belonging,  who  knowingly 
mi'.kes  a  false  return  thereof  shall  he  dismissed  from  the  service  and 
suffer  such  other  punishment  as  a  court-martial  may  direct.  And  any 
officer  whe,  thr«nffh  •effect  w  fteslgrn,  omits  to  render  such  return 
shall  be  pujaisfced  «»  a  orart-cnartial  may  direct. 

DEFINITIONS  AND  PRINCIFIJES. 

See  the  terms  of  the  article,  the  penal  part  of  which  ap- 
plies broadly  to  "  every  officer  whose  duty  it  is  to  render  to 
the  War  Department  or  other  superior  authority  a  return 
of  the  state  of  the  troops  under  his  command,  or  of  the  arms, 
ammunition,  clothing,  funds,  or  other  property  thereunto 
belonging." 

ANALYSIS  AND  PROOF. 

The  article  applies  to  commanding  officers  only. 
The  article  defines  two  offenses : 

I.  Making  false  returns. 

II.  Omitting  to  render  returns. 


If  409  CHAPTER  xvn. 

I.    MAKING  FALSE  RETURNS. 

As  to  knowingly,  see  remarks  under  fifty-fifth  article, 
(Par.  406,  supra.) 

PROOF. 

(a)  That  the  accused  officer  was  a  commanding  officer,  as 
alleged. 

(b)  That  it  became  his  duty  as  such  to  render  to  a  certain 
superior  authority  a  certain  return  as  specified. 

(c)  That  he  complied  with  such  duty,  and  that  the  return 
so  made  was  false  in  certain  particulars,  as  alleged. 

(d)  That  the  accused  officer  knew  that  the  return  was 
false  at  the  time  of  making  it. 

II.    OMITTING  TO  RENDER  RETURNS. 

The  term  "neglect"  involves  the  idea  of  culpability  and 
includes  the  case  of  an  officer  who,  knowing  the  return  to 
be  due,  fails  to  render  it  through  remissness  or  procrasti- 
nation. 

PROOF. 

(a)  That  the  accused  officer  was  a  commanding  officer  as 
alleged. 

(5)  That  it  became  his  duty  as  such  to  render  to  a  certain 
superior  authority  a  certain  return  as  specified. 

(c)  That  he  omitted  through  neglect  or  design  to  render 
such  return. 

SECTION  II. 

DESERTION— ABSENCE  WITHOUT  LEAVE. 

409.  Fifty-eighth  Article  of  War: 

Any  person  subject  to  military  law  who  deserts  or  attempts  to  de- 
sert the  service  of  the  United  States  shall,  if  the  offense  be  com- 
mitted in  time  of  war,  suffer  death  or  such  other  punishment  »s  ;i 
court-martial  may  direct,  and,  if  the  offense  be  committed  at  any 
other  time,  any  punishment,  excepting;  death,  that  a  court  -martial 
may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

Desertion  is  absence  without  leave  accompanied  by  the  in- 
tention, either  (a)  not  to  return,  (b)  to  avoid  hazardous  duty, 
or  (c)  to  shirk  important  service.  (A.  W.  28.) 

342 


PUNITIVE  ARTICLES  OF  WAR.  ^f    409 

A. — Absence  Without  Leave,  with  Intent  Not  to  Return. 

Both  elements  are  essential  to  the  offense.  The  offense  be- 
comes complete  when  the  person  absents  himself  without  au- 
thority from  his  place  of  service  with  intent  not  to  return 
thereto.  A  prompt  repentance  and  return  are  no  defense, 
nor  is  it  a  defense  that  the  deserter  at  the  time  of  departure 
intended  to  report  for  duty  elsewhere.  Thus,  where  a  soldier 
leaves  his  post  intending  never  to  go  back  unless  a  certain 
event  happens,  or  leaves  his  post  with  such  intent  and  reports 
at  another  post,  he  is  a  deserter ;  but  unless  such  intent  exists 
at  some  time  the  soldier  can  not  be  a  deserter  whether  his 
purpose  is  to  stay  away  a  definite  or  indefinite  length  of  time. 

Where  a  soldier,  without  having  been  discharged,  again 
enlists  in  the  Army  or  in  the  Militia  in  the  service  of  the 
United  States,  such  enlistment  is,  by  the  twenty-eighth 
article  of  war  made  sufficient  evidence  of  desertion.  In  such 
a  case,  other  proof  of  the  intent  permanently  to  stay  away 
from  his  former  place  of  service  and  of  the  status  of  absence 
without  leave  therefrom  are  unnecessary. 

B. — Absence  Without  Leave,  with  Intent  to  Avoid  Hazardous 

Duty. 

C. — Absence  Without  Leave,  with  Intent  to  to  Shirk  Important 

Service. 

"  Short  desertion." — Under  the  twenty-eighth  article  of  war 
as  amended  by  the  code  of  1920  any  person  subject  to  military 
law  who  "  quits  his  organization  or  place  of  duty  with  the  intent 
to  avoid  hazardous  duty  or  to  shirk  important  service  shall  be 
deemed  a  deserter."  Congress  thereby  adopted  the  principle 
that  willful  absence  from  dangerous  or  hazardous  duty  is  deser- 
tion, as  it  is  in  the  British  service  ("  short  desertion  ").  Tinder 
this  article  a  man  who  absents  himself  in  a  deliberate  or  clandes- 
tine manner,  with,  a  view  of  (1)  avoiding  some  hazardous  duty 
or  (2)  of  shirking  some  important  service,  though  he  may  in- 
tend to  return  when  the  evasion  of  the  duty  or  the  service  is 
accomplished,  is  liable  to  be  convicted  of  desertion,  just  as  if 
an  intention  never  to  return  had  been  proved  against  him. 


343 


^[409  *       CHAPTER  XVII, 

(Brit.  M.  M.  M.,  Chap.  HI,  sec.  16,  pp.  18-19).  Thus,  if  a 
man  on  the  eve  of  the  embarkation  of  his  regiment  for  overseas 
service,  or  when  ordered  to  aid  in  the  suppression  of  riot  or 
insurrection,  or  on  strike  duty,  conceals  himself  in  barracks,  or 
is  absent  without  leave,  the  court  may  be  quite  justified  in 
presuming  an  intention  to  escape  the  hazardous  duty  or  impor- 
tant service  on  which  he  was  ordered,  and  in  convicting  him  of 
desertion. 

ANALYSIS  AND  PROOF. 

The  article  includes  all  persons  subject  to  military  law. 
The  article  covers  two  offenses,  as  follows: 

I.  Desertion. 

II.  Attempting  to  desert. 

I.    DESERTION. 
FROOF. 

(a)  That  the  accused  absented  himself,  or  remained  ab- 
sent without  authority,  from  his  place  of  service,  as  alleged. 

(b)  That,  either, 

1.  He  intended,  at  the  time  of  absenting  himself  or 
at  some  time  during  his  absence,  to  remain  away  perma- 
nently from  such  place:  or, 

2.  That  at  the  time  he  absented  himself  either  the  or- 
ganization to  which  he  belonged,  or  he  himself,  was  under 

"orders  or  anticipated  orders  involving  either  (a)  hazardous 
duty  or  (b)  some  important  service,  and  that  Ms  absence 
without  leave  was  so  timed  as  to  appear  calculated  to 
enable  him  to  avoid  such  hazardous  duty  or  to  shirk  such 
important  service,  as  the  case  may  be. 

(c)  That  his  absence  was  of  a  duration  and  was  termi- 
nated as  alleged. 

(d)  That  his  act  was  done,  if  so  alleged,  in  the  execution 
of  a  certain  conspiracy,  or  in  the  presence  of  a  certain  out- 
break of  Indians,  or  of  a  certain  unlawful  assemblage  which 
his  organization  was  opposing,  or  in  time  of  war  where  the 
court  will  not  take  judicial  notice  of  the  existence  of  a  status 
of  war. 

344 


PUNITIVE  ARTICLES  OF  WAR.  ^f    409 

(e)  Where  the  soldier  enlisted  without  a  discharge  (see 
A.  W.  28),  that  the  accused  was  a  soldier  in  a  certain  organi- 
zation of  the  Army  as  alleged ;  and  that,  without  being  dis- 
charged from  such  organization,  he  again  enlisted  in  the 
Army,  or  in  the  militia  when  in  the  service  of  the  United 
States,  or  in  the  Navy,  or  the  Marine  Corps  of  the  United 
States,  or  in  some  foreign  army,  as  alleged.     In  this  case 
proof  of  the  absence  without  leave  and  of  the  intention  not 
to  return  become  unnecessary. 

(f)  When  an  officer,  having  tendered  his  resignation,  and 
prior  to  due  notice  of  the  acceptance  of  the  same,  quits  his 
post,  etc.  (see  A.  W.  28),  that  the  accused  was  a  commissioned 
officer  of  the  Army  as  alleged;  that  he  has  tendered  his  resig- 
nation; and  that,  prior  to  due  notice  of  acceptance  thereof, 
he  did  quit  his  post  or  proper  duties  without  leave ;  and  that  he 
did  so  with  intent  to  absent  himself  permanently  from  his  post 
or  proper  duties. 

HOTE. — In  proving  a  specification  alleging  that  the  accused  quit 
his  organization  or  place  of  duty  with  the  intent  to  avoid  hazardous 
duty,  or  with  the  intent  to  shirk  important  service,  the  trial  judge 
advocate  should  offer  in  evidence  proof  of  facts  tending  to  show  that 
the  accused  knew  with  reasonable  certainty  that  he  would  be  required 
for  such  hazardous  duty  or  important  service,  as  the  case  may  be.  To 
prove  this  the  prosecution  should  show  (a)  that  the  accused  was 
warned;  or  (b)  that  the  organization,  as  a  whole,  was  warned,  if 
possible  on  parade  at  which  the  roll  was  called  and  the  accused  was 
present;  or  (c)  that,  having  regard  to  the  orders,  or  the  usual  cus- 
toms of  reliefs,  the  accused  must  have  known  that  the  turn  of  his 
company,  etc.,  was  imminent  (an  officer  or  senior  noncommissioned 
officer  should  give  evidence  of  the  usual  custom  of  reliefs,  and  of 
the  dates  of  the  hazardous  duties  or  important  service  which  the 
accused  missed  or  which  his  absence  was  timed  to  miss) ;  or  (d) 
that  the  period  of  absence  was  so  long  that  the  accused  must  have 
known  that  he  would  miss  hazardous  duty  or  important  service. 

H.  ATTEMPTING  TO  DESERT. 

An  attempt  to  desert  is  an  overt  act  other  than  mere  prep- 
aration toward  accomplishing  a  purpose  to  desert. 

Usually  the  endeavor  of  the  accused  toward  getting  away 
will  be  frustrated  by  an  agency  independent  of  his  own  will ; 
but  once  the  attempt  is  made  a  turning  back  by  the  accused 

345 


If    410  CHAPTER  XVII. 

of  his  own  accord  does  not  obliterate  the  offense.  An  in- 
stance of  the  offense  is :  A  soldier  intending  to  desert  hides 
himself  in  an  empty  freight  car  on  the  post,  intending  to 
effect  his  escape  from  the  post  by  being  taken  out  in  the  car. 

PBOOF. 

(a)  That  the  accused  made  the  attempt  by  doing  the  overt 
act  or  acts  alleged. 

(b)  That  he  intended  to  desert  at  the  time  of  doing  such 
act  or  acts. 

(c)  That  his  act  was  done,  if  so  alleged,  in  the  execution 
of  a  certain  conspiracy,  or  in  the  presence  of  a  certain  out- 
break of  Indians,  or  a  certain  unlawful  assemblage  which  his 
organization  was  opposing,  or  in  time  of  war  where  the  court 
will  not  take  judicial  notice  of  the  existence  of  the  status 
specified. 

NOTE. — The  attempt  to  desert  may  be  with  the  intent  either  (a) 
not  to  return,  (b)  to  avoid  hazardous  duty,  or  (c)  to  shirk  important 
service.  (See  subpar.  I  of  this  paragraph,  supra.)  The  proof  should 
correspond  to  the  allegations  of  the  specification,  as  the  case  may  be. 

410.  Fifty-ninth  Article  of  War: 

Any  person  subject  to  military  law  who  advises  or  persuades 
or  knowingly  assists  another  to  desert  the  service  of  the  United 
States  shall,  if  the  offense  he  committed  in  time  of  war,  suffer 
death  or  such  other  punishment  as  a  court-martial  may  direct, 
and,  if  the  offense  he  committed  at  any  other  time,  any  punish- 
ment, excepting;  death,  that  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

See  the  definition  of  desertion  under  the  next  preceding 
article. 

As  to  knowingly,  see  remarks  under  the  fifty-fifth  article. 

The  offenses  of  persuading  and  assisting  desertion  are  not 
complete  unless  the  desertion  occurs;  but  the  offense  of  ad- 
vising is  complete  when  the  advice  is  given,  whether  the 
person  advised  deserts  or  not. 

It  is  not  necessary  that  the  accused  act  alone  in  giving  the 
advice  or  assistance,  or  in  the  persuasion;  and  he  may  act 
through  other  persons  in  committing  the  offenses. 

846 


PUNITIVE  ARTICLES  OF  WAR.  ^    410 

ANALYSIS  AND  PROOF. 

The  article  applies  to  all  persons  subject  to  military  law. 
See  article  2. 
The  article  defines  three  offenses,  as  follows : 

I.  Advising  desertion. 

II.  Persuading  desertion. 

III.  Assisting  desertion. 

I.    ADVISING   DESERTION. 
PEOOF. 

(a)  That  the  accused  advised  a  person  subject  to  military- 
law  to  desert  the  service  as  alleged. 

(b]  That  the  act  was  done,  if  so  alleged,  in  time  of  war, 
where  the  court  will  not  take  judicial  notice  of  the  status 
of  war. 

II.    PERSUADING  DESERTION. 
PROOF. 

(a)  That  the  accused  used  persuasion  to  induce  a  person 
subject  to  military  law  to  desert  the  service  as  alleged. 

(b)  That  the  person  whom  he   persuaded   deserted  as 
alleged,  and  was  induced  to  do  so  by  such  persuasion.    See 
proof  of  desertion  in  the  next  preceding  article. 

(c)  That  the  act  was  done,  if  so  alleged,  in  time  of  war, 
where  the  court  will  not  take  judicial  notice  of  the  status 
of  war. 

in.  ASSISTING  DESERTION. 
PROOF. 

(a)  That  the  accused  knowingly  assisted  a  person  subject 
to  military  law  to  desert  the  service  as  alleged. 

(b)  That  the  person  given  such  assistance  deserted  as  al- 
leged.   See  proof  of  desertion  in  the  next  preceding  article. 

(c)  That  the  act  was  done,  if  so  alleged,  in  time  of  war, 
where  the  court  will  not  take  judicial  notice  of  the  status  of 
war. 

347 


«fl    411  OHAPTES  XVII. 

411.  Sixtieth  Article  of  War: 

Any  officer  who,  after  having  discovered  that  a  soldier  in  his  com- 
mand is  a  deserter  from  the  military  or  nav«l  service  or  from  the 
Marine  Corps,  retains  such  deserter  in  his  command  without  inform- 
ing superior  authority  or  the  commander  of  the  organization  to 
which  the  deserter  belongs,  shall  be  punished  as  a  court-martial  may 
direct. 

DEFINITIONS  AND  PRINCIPLES, 

See  definition  of  desertion  under  article  58. 

Discovered  does  not  imply  a  certainty  on  the  one  hand  or  a 
mere  suspicion  on  the  other.  It  implies  such  a  belief  as  the 
ordinarily  prudent  officer  would  act  upon. 

ANALYSIS  AND  PROOF. 

The  article  applies  only  to  commanding  officers. 
The  article  defines  one  offense: 

I.  RETAINING  A  DESERTER. 
PBOOF. 

(a)  That  the  accused  officer  exercised  a  certain  command 
as  alleged. 

(5)  That  white  so  in  command  he  discovered  that  a  certain 
soldier  in  his  command  was  a  deserter  from  the  military  or 
naval  service,  or  from  the  Marine  Corps,  as  alleged. 

(c)  That  such  soldier  was  in  fact  such  a  deserter.     See 
proof  of  desertion  under  fifty -eighth  article. 

(d)  That  he  retained  such  deserter  in  his  command  with- 
out informing  superior  authority  or  the  commanding  officer 
of  the  organization  to  which  the  deserter  belongs,  as  alleged. 

412.  Sixty-first  Article  of  War: 


Any  person  snfcject  to  military  law  who  fails  to  repair  at  the  fixed 
tine  to  the  properly  appointed  place  of  duty,  or  goes  from  the  snme 
without  proper  leave,  or  absents  himself  from  his  command,  guard, 
quarters,  station,  or  camp  without  proper  leave*  shall  be  punished  as 
a  court-martial  *aey  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  article  is  designed  to  cover  every  case  not  elsewhere 
provided  for  where  any  person  subject  to  military  law  ia 
through  his  own  fault  not  at  the  place  where  he  is  required 
to  be  at  a  time  when  he  should  be  there. 


84S 


PUNITIVE  ARTICLES  OF  WAE.  *§    412 

The  first  part  of  the  article— that  relating  to  properly  ap- 
pointed place  of  duty — applies  whether  such  place  is  ap- 
pointed as  a  rendezvous  for  several  or  for  one  only.  Thus,  it 
would  apply  in  the  case  of  a  soldier  failing  to  report  as  the 
kitchen  police  or  leaving  such  duty  after  reporting. 

A  soldier  turned  over  to  the  civil  authorities  upon  appli- 
cation is  not  punishable  under  this  article  for  the  period  he 
is  held  by  them  under  such  delivery.  So,  also,  where  a  sol- 
dier is  absent  with  leave  and  is  held,  tried,  and  acquitted  by 
the  civil  authorities,  his  status  does  not  change  to  absence 
without  leave.  But  where  the  soldier  is  absent  without  leave 
when  tried,  although  acquitted,  or  being  absent  with  leave 
is  convicted  and  held  beyond  the  expiration  of  his  pass,  or 
being  absent  without  leave  is  unable  to  return  through  sick- 
ness or  lack  of  transportation  facilities,  or  other  disabilities, 
the  period  of  the  absence  without  leave  will  include  the  time 
he  is  so  detained  j  but,  in  view  of  the  fact  that  the  absence 
during  such  time  is  enforced,  it  would  be  appropriate  not 
to  consider  the  length  of  such  detention  for  the  purpose  of 
administering  punishment  in  the  case. 

In  computing  the  length  in  days  of  a  period  of  absence  for 
the  purpose  of  determining  the  maximum  punishment  for 
an  absence  without  leave  under  this  article,  periods  of  24 
hours  are  considered  one  day.  Thus,  a  soldier  who  absents 
himself  from  11.59  p.  m.  one  day  to  12.01  a.  m.  the  next  is 
absent  only  a  fraction  of  a  day  as  far  as  the  maximum  pun- 
ishment order  is  concerned,  although  the  period  of  absence 
cover  parts  of  two  calendar  days. 

ANALYSIS  AND  PEOOF. 

The  article  applies  to  any  person  subject  to  military  law. 
See  Article  2. 

The  article  defines  a  number  of  offenses  which  may  be 
treated  under  the  general  term  "Absence  without  leave." 

I.    ABSENCE   WITHOUT   LEAVE. 
PROOF. 

(1)  Where  the  accused  fails  to  appear  at  or  goes  from  a 
place  of  duty. 

(a)  That  a  certain  authority  appointed  a  certain  time  and 
place  for  a  certain  duty  by  the  accused,  as  alleged. 

349 


If    413  CHAPTER  XVII. 

(b)  That  he  failed  to  report  to  such  place  at  the  proper 
time,  or  having  so  reported  went  from  the  same  without 
authority  from  any  one  competent  to  give  him  leave  to  do  so. 

(2)  Where  the  accused  is  charged  with  absenting  himself 
without  proper  leave. 

(a)  That  the  accused  absented  himself  from  his  command, 
guard,  quarters,  station,  or  camp  for  a  certain  period,  as 
alleged. 

(b)  That  such  absence  was  without  authority  from  any 
one  competent  to  give  him  leave. 

SECTION  III. 
DISRESPECT— INSUBORDINATION— MUTINY. 

413.  Sixty -second  Article  of  War: 

Any  officer  who  uses  contemptuous  or  disespectful  words  against 
the  President,  Vice  President,  the  Congress  of  the  United  States,  the 
Secretary  of  "War,  or  the  governor  or  legislature  of  any  State,  Terri- 
tory, or  other  possession  of  the  United  States  in  which  he  is  quar- 
tered shall  be  dismissed  from  the  service  or  suffer  such  other  punish- 
ment as  a  court-martial  may  direct.  Any  other  person  subject  to 
military  law  who  so  offends  shall  be  punished  as  a  court-martial 
may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  contemptuous  or  disrespectful  words,  as  used  in  this 
article,  cover  language  disrespectful  and  contemptuous  in 
themselves,  such  as  abusive  epithets,  denunciatory  or  con- 
tumelious expressions,  or  intemperate  or  malevolent  com- 
ments upon  official  or  personal  acts,  etc.,  or  words  disre- 
spectful or  contemptuous  because  of  the  connection  in 
which  and  the  circumstances  under  which  they  are  used. 

It  is  essential  that  a  person  against  whom  such  words 
are  used  be  in  one  of  the  offices  named  at  the  time ;  but  it  is 
immaterial  whether  the  words  are  spoken  against  him  in  his 
official  or  private  capacity. 

The  truth  or  falsity  of  the  statements  is,  as  a  rule,  imma- 
terial. 

Trials  for  offenses  covered  by  this  article  have  usually  been 
for  the  use  of  "  contemptuous  or  disrespectful  words  against 
the  President,"  or  the  Government  mainly  as  represented  by 

350 


PUNITIVE   ARTICLES   OF   WAR. 

the  President.  The  deliberate  employment  of  denunciatory 
or  contumelious  language  in  regard  to  the  President,  whether 
spoken  in  public  or  published,  or  conveyed  in  a  communica- 
tion designed  to  be  made  public,  has,  in  repeated  cases,  been 
made  the  subject  of  charges  and  trial  under  this  article, 
(Digest,  p.  120 ;  Winthrop,  p.  872.) 

The  language  used  must  be  disrespectful  or  contemptuous. 
Adverse  criticism  of  the  Executive  expressed  in  emphatic 
language  in  the  heat  of  political  discussion,  but  not  ap- 
parently intended  to  be  personally  disrespectful,  should  not 
be  made  the  basis  of  trial  under  this  article.  (Idem.) 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 

The  article  defines  a  number  of  offenses  which  may  be 
treated  under  the  general  term  of  "  disrespect  toward  the 
President,  etc." 


PEOOF. 

(a)  That  the  accused  used  certain  contemptuous  or  dis- 
respectful words  against  the  President,  or  other  of  the  au- 
thorities mentioned  in  the  article,  as  alleged. 

( b )  Where  such  words  are  not  contemptuous  or  disrespect- 
ful in  themselves,  that  the  words  were  used  under  certain  cir- 
cumstances or  in  a  certain  connection,  or  that  a  certain  in- 
tended meaning  gave  them  the  character  of  contemptuous  or 
disrespectful  words,  as  alleged. 

414.  Sixty-third  Article  of  War: 

Any  person  subject  to  military  law  who  behaves  himself  with  dis- 
respect toward  his  superior  officer  shall  be  punished  as  a  court- 
martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  disrespectful  behavior  contemplated  by  this  article  is 
such  as  detracts  from  the  respect  due  to  the  authority  and 
person  of  a  superior  officer.  It  may  consist  in  acts  or  lan- 
guage, however  expressed. 

21358°— 20 23 

351 


^    414  CHAPTER    XVII. 

It  is  not  essential  that  the  disrespectful  behavior  be  in  the 
presence  of  the  superior,  but  in  general  it  is  considered  objec- 
tionable to  hold  one  accountable  under  this  article  for  what 
was  said  OF  done  by  him  in  a  purely  private  conversation. 

The  officer  toward  whom  the  disrespectful  behavior  was 
directed  must  have  been  the  superior  of  the  accused  at  the 
time  of  the  acts  charged;  but  by  superior  is  not  necessarily 
meant  a  superior  in  rank,  as  a  line  officer,  though  inferior  in 
rank,  may  be  the  commanding  officer,  and  thus  the  superior 
of  a  staff  officer,  such  as  a  surgeon. 

Disrespect  by  words  may  be  conveyed  by  opprobrious  epi- 
thets or  other  contumelious  or  denunciatory  language.  (Win- 
throp,  p.  874.) 

Disrespect  by  acts  may  be  exhibited  in  a  variety  of  modes — 
as  neglecting  the  customary  salute,  by  a  marked  disdain,  in- 
difference, insolence,  impertinence,  undue  familiarity,  or 
other  rudeness  in  the  presence  of  the  superior  officer.  (Win- 
throp,  p.  875.) 

It  is  not  essential  that  the  behavior  be  intentional,  and  it  is 
immaterial  that  only  facts  were  stated ;  but  where  the  person 
who  did  the  acts  or  spoke  the  words  did  not  know  that  the 
person  against  whom  they  were  directed  was  his  superior  offi- 
*ier,  such  ignorance  is  a  defense. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 
See  Article  2. 

The  article  defines  one  offense,  that  is,  disrespect  toward  a 
superior  officer. 

I.  DISRESPECT  TOWARD  A  SUPERIOR  OFFICER. 

PROOF. 

r 

(a)  That  the  accused  did  or  omitted  to  do  certain  acts  or 
spoke  certain  words  toward  a  certain  officer,  as  alleged. 

(5)  That  the  behavior  involved  in  such  acts,  omissions,  or 
words  was.  under  certain  circumstance,  or  in  a  certain  con- 
nection or  with  a  certain  meaning,  as  aEeged. 

352 


PUNITIVE  ARTICLES   OF  WAR. 


415 


(c)  That  the  officer  toward  whom  the  acts,  omissions,  or 
words  were  directed  was  the  accused's  superior  officer. 

415.  Sixty-fourth  Article  of  War: 

Any  person  swfojeet  t«x  military  law  wlie>  on  any  pretense  •whatso- 
ever, strikes  his  superior  officer  or  draws  or  lifts  up  any  weapon  or 
offers  any  violence  against  him,  being:  in  the  execution  of  his  office, 
or  willfully  disobeys  any  lawful  command  of  his  sttperfor  officer,  shall 
«s-.:lTcr  death  or  such  other  punishment  as  a  court -martial  m:ty  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  phrase  "on  any  pretense  whatsoever"  is  not  to  be 
understood  as  excluding  as  a  defense  the  fact  that  the  strik- 
ing was  done  in  legitimate  self-defense  or  in  the  discharge 
of  some  duty,  such  as  is  enjoined  by  the  sixty-seventh  article. 

By  "  superior  officer  "  is  meant  not  only  the  commanding 
officer  of  the.  accused,  whatever  may  be  the  relative  rank  of 
the  two,  but  any  other  commissioned  officer  of  rank  supe- 
rior to  that  of  the  accused.  That  the  accused  did  not  know 
the  officer  to  be  his  superior  is  available  as  a  defense. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 
See  Article  2. 

The  article  embraces  ofi'enses  indicated  by  the  following 
diagram : 


Any  person 
subject  to 
military 
law  who 


Strikes 

or 

Draws  ) 
1  Any  weapon 

Lifts  up]     a^inst 

His  superior  officer 
being  in  the  ex- 
ecution of  his 

or 

office. 

Offers  any  violence 

against 

or 

On  any  pretense 
whatsoever 


Willfully  disobeys  any  lawful  command  of  his-  superior 
officer. 


These  offenses  may  be  treated  under  the  following  heads: 

I.  Assaulting  superior  officer. 

II,  Disobeying  superior  officer. 


353 


^j    415  CHAPTER  XVII. 

I.    ASSAULTING    SUPERIOR   OFFICER. 

The  word  "  strikes  "  means  an  intentional  blow  with  any- 
thing by  which  a  blow  can  be  given. 

The  phrase  "  draws  or  lifts  up  any  weapon  against "  covers 
any  simple  assault  committed  in  the  manner  stated. 

The  offense  consisting  either  in  a  mere  threatening  of  vio- 
lence without  anything  further  being  proposed,  or  in  an 
attempt  to  do  violence  which  is  not  effectuated.  The  weapon 
chiefly  had  in  view  by  the  word  "  draw  "  is  no  doubt  the 
sword;  the  term  might,  however,  apply  to  a  bayonet  in  a 
sheath,  or  to  a  pistol;  and  the  drawing  of  either  in  an 
aggressive  manner,  or  the  raising  or  brandishing  of  the  same 
minaciously  in  the  presence  of  the  superior  and  at  him  is 
the  sort  of  act  contemplated.  The  raising  in  a  threatening 
manner  of  a  firearm  (whether  or  not  loaded)  or  of  a  club,  or 
any  implement  or  thing  by  which  a  serious  blow  could  be 
given,  would  be  within  the  description — "  lifts  up."  (Win- 
throp,  p.  879.) 

The  phrase  "offers  any  violence  against  him"  comprises 
any  form  of  battery  or  of  mere  assault  not  embraced  in  the 
preceding  more  specific  terms  "  strikes  "  and  "  draws  or  lifts 
up."  But  the  violence  where  not  executed  must  be  physically 
attempted  or  menaced.  A  mere  threatening  in  words  would 
not  be  an  offering  of  violence  in  the  sense  of  the  article. 
(Winthrop,  pp.  879  and  880.) 

An  officer  is  in  the  execution  of  his  office  "  when  engaged  in 
any  act  or  service  required  or  authorized  to  be  done  by  him 
by  statute,  regulation,  the  order  of  a  superior,  or  military 
usage."  (Winthrop,  p.  881.) 

PROOF. 

(a)  That  the  accused  struck  a  certain  officer  with  or  with- 
out a  certain  thing  or  weapon  or  drew  or  lifted  up  a  certain 
weapon  against  him  or  offered  violence  against  him,  as 
alleged. 

(I))  That  such  officer  was  the  accused's  superior  officer  at 
the  time. 

(c)  That  such  superior  officer  was  in  the  execution  of  his 
office  at  the  time,  as  alleged. 

354 


PUNITIVE  AKTICLES  OF  WAR.  ^f    415 

II.   DISOBEYING  SUFERIOR  OFFICER. 

The  willful  disobedience  contemplated  is  such  as  shows  an 
intentional  defiance  of  authority,  as  where  a  soldier  is  given 
an  order  by  an  officer  to  do  or  cease  from  doing  a  particular 
thing  at  once  and  refuses  to  do  what  is  ordered  or  simply 
omits  to  do  it. 

Where  the  order  is  operative  in  futuro,  a  mere  neglect  to 
comply  with  it  "  through  heedlessness,  remissness,  or  forget- 
f ulness  is  an  offense  chargeable  not  in  general  under  this 
article,  but  under  the  general  article"  (Winthrop,  p.  884), 
and  the  same  is  true  of  a  mere  refusal  to  obey  such  an  order 
before  the  time  set  for  its  execution. 

The  order  must  relate  to  military  duty  and  be  one  which 
the  superior  officer  is  authorized  under  the  circumstances  to 
give  the  accused.  Disobedience  of  an  order  which  has  for 
its  sole  object  the  attainment  of  some  priv.ate  end,  or  which  is 
given  for  the  sole  purpose  of  increasing  the  penalty  for  an 
offense  which  it  is  expected  the  accused  may  commit,  is  not 
punishable  under  this  article. 

An  accused  can  not  be  convicted  of  a  violation  of  this 
article  if  the  order  was  in  fact  unlawful ;  but,  unless  the  order 
is  plainly  illegal,  the  disobedience  of  it  is  punishable  under 
the  general  article,  i.  e.,  the  ninety-sixth  article. 

To  justify  from  a  military  point  of  view  a  military  in- 
ferior in  disobeying  the  order  of  a  superior,  the  order  must 
be  one  requiring  something  to  be  done  which  is  palpably  a 
breach  of  law  and  a  crime  or  an  injury  to  a  third  person,  or 
is  of  a  serious  character  (not  involving  unimportant  conse- 
quences only)  and  if  done  would  not  be  susceptible  of  being 
righted.  An  order  requiring  the  performance  of  a  military 
duty  or  act  can  not  be  disobeyed  with  impunity  unless  it  has 
one  of  these  characteristics. 

That  obedience  to  a  command  involved  a  violation  of  the 
accused's  religious  scruples  is  not  a  defense. 

Failure  to  comply  with  the  general  or  standing  orders  of  a 
corps  area,  department,  division,  district,  post,  etc.,  or  with  the 
Army  Regulations,  is  not  an  offense  under  this  article,  but 


355 


f    416  CHAPTER  XVII. 

under  the  ninety-sixth  article;  and  so  of  a  nonperformance 
by  a  subordinate  of  any  mere  routine  duty. 

The  form  of  the  order  is  immaterial,  as  is  the  method  by 
which  it  is  transmitted  to  the  accused;  but  the  communica- 
tion must  amount  to  an  order  and  the  accused  must  know 
that  it  is  from  his  superior  officer;  that  is,  a  commissioned 
officer  who  is  authorized  to  give  the  order  whether  he  is  su- 
perior in  rank  to  the  accused  or  not. 


PEOOF. 

(a)  That  the  accused  received  a  certain  command  from  a 
certain  officer  as  alleged. 

(b)  That  such  officer  was  the  accused's  superior  officer. 

(c)  That  the  accused  willfully  disobeyed  such  command. 

416.  Sixty-fifth  Article  of  War: 

Any  soldier  who  strikes  or  assaults,  or  who  attempts  or  threatens 
to  strike  or  assault,  or  willfully  disobeys  the  lawful  order  of  a  war- 
rant officer  or  a  noncommissioned  officer  while  in  the  execution  of 
his  office,  or  uses  threatening  or  insulting  language,  or  behaves  in  »n 
insubordinate  or  disrespectful  manner  toward  a  warrant  officer  or  a 
noncommissioned  officer  while  in  the  execution  of  his  ofiice,  shall  be 
punished  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

This  article  has  the  same  general  objects  with  respect  to 
warrant  officers  and  noncommissioned  officers  as  the  sixty- 
third  and  sixty-fourth  articles  have  with  respect  to  commis- 
sioned officers,  namel}7,  to  insure  obedience  to  their  lawful 
orders,  and  to  protect  them  from  violence,  insult,  or  dis- 
respect. 

The  terms  "  wiHful  disobedience,"  "lawful  order,"  and  "  in 
the  execution  of  his  office  "  are  used  in  the  same  sense  as  in 
the  sixty- fourth  article. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  enlisted  men  only. 
The  article  embraces  offenses  indicated  by  the  following 
diagram : 

356 


PUNITIVE  ARTICLES  OF  WAK. 


416 


Any  soldier  who 


Strikes 
or 
Assaults 

or 
Attempts   1      rStrike 

or        !to  |     or 
Threatens  J      [Assault 

or 

Willfully  disobeys  the 
lawful  order  of 
or 

(Threatening  language 
Uses  J         or 

[insulting  language 
or 

[Insubordinate  manner 
Behaves  in  an  <  or 

[Disrespectful  manner 


A  warrant  officer  or  a  noncom- 
missioned officer  while  iu 
the  execution  of  his  office. 


("Toward  a  war- 
rant officer  or 
a  noncommis- 
sioned officer 
while  in  the 
execution  of 
his  office. 


These  offenses  may  be  briefly  treated  under  the  following 
headings : 

I.  Assaulting  a  warrant  officer  or  a  noncommissioned 
officer, 

IL  Disobeying  a  warrant  officer  or  a  noncommissioned 
officer. 

III.  Using  threatening  or  insulting  language  or  behaving 
in  an  insubordinate  or  disrespectful  manner  toward  a  warrant 
officer  or  a  noncommissioned  officer. 

i.  ASSAULTING  A  warrant  officer  or  a  NONCOMMISSIONED 

OFFICER. 

For  definition  of  the  offense,  see  ninety-third  article.  (Di- 
vision XII,  par.  443,  infra.) 

The  part  of  the  article  relating  to  assaults  covers  any 
unlawful  violence  against  a  warrant  officer  or  a  noncommis- 
sioned officer  in  the  execution  of  his  office,  whether  such  vio- 
lence is  merely  threatened  or  is  advanced  in  any  degree  tow- 
ard application. 

PROOF. 

(a)  That  the  accused  soldier  struck  a  certain  warrant 
officer  or  noncommissioned  officer  as  alleged,  with  a  certain 


357 


^f    416  CHAPTER  XVII. 

thing,  or  assaulted  or  attempted  or  threatened  to  strike  or 
assault  him  in  a  certain  manner,  as  alleged. 

(b)  That  such  warrant  officer  or  noncommissioned  officer 
was  at  the  time  in  the  execution  of  his  office,  as  alleged. 

ii.  DISOBEYING  A  warrant  officer  or  a  NONCOMMISSIONED 

OFFICER. 

•  • 

PBOOF. 

(a)  That  the  accused  soldier  received  a  certain  command 
from  a  certain  warrant  officer  or  noncommissioned  officer,  as 
alleged. 

(b)  That  the  warrant  officer  or  noncommissioned  officer 
was  in  the  execution  of  his  office. 

(c)  That  the  accused  soldier  willfully  disobeyed  such  com- 
mand. 

III.  USING  THREATENING  OR  INSULTING  LANGUAGE  OR  BEHAV- 
ING IN  AN  INSUBORDINATE  OR  DISRESPECTFUL  MANNER  TO- 
WARD A  warrant  officer  or  a  NONCOMMISSIONED  OFFICER. 

The  phrase  "  while  in  the  execution  of  his  office  "  limits  the 
application  of  this  part  of  the  article  to  language  and  be- 
havior within  sight  or  hearing  of  the  warrant  officer  or  non- 
commissioned officer  toward  whom  it  is  used;  the  word 
"  toward  "  not  being  used  in  the  same  sense  as  in  the  sixty- 
third  article  of  war. 


PKOOF. 


(a)  That  the  accused  used  certain  language  or  did  or 
omitted  to  do  certain  acts  under  certain  circumstances,  or 
in  a  certain  manner  or  with  a  certain  intended  meaning,  as 
alleged. 

(b)  That  such  language  or  behavior  was  used  toward  a 
certain  warrant  officer  or  noncommissioned  officer. 

(c)  That  such  warrant  officer  or  noncommissioned  officer 
was  at  the  time  in  the  execution  of  his  office,  as  alleged. 

358 


PUNITIVE  ARTICLES  OF  WAR.  ^f    417 

417.  Sixty-sixth  Article  of  Wur: 

Any  person  subject  to  military  law  who  attempts  to  create  or  wh» 
begins,  excites,  causes,  or  joins  in  any  mutiny  or  sedition  in  any 
company,  party,  post,  camp,  detachment,  guard,  or  other  command 
shall  suffer  death  or  such  other  punishment  as  a  court-martial  may 
direct. 

DEFINITIONS  AND  PRINCIPLES. 

Mutiny  imports  collective  insubordination,  and  necessarily 
includes  some  combination  of  two  or  more  persons  in  resisting 
lawful  military  authority. 

Sedition  implies  the  raising  of  commotion  or  disturbance 
against  the  State ;  it  is  a  revolt  against  legitimate  authority 
and  differs  from  mutiny  in  that  it  implies  a  resistance  to  law- 
ful civil  power. 

The  concert  of  insubordination  contemplated  in  mutiny  or 
sedition  need  not  be  preconceived  nor  is  it  necessary  that  the 
act  of  insubordination  be  active  or  violent.  It  may  consist 
simply  in  a  persistent  and  concerted  refusal  or  omission  to 
obey  orders  or  to  do  duty  with  an  insubordinate  intent. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  five  offenses  relating  to  mutiny  and  five 
relating  to  sedition. 

I.  Attempting  to  create  a  mutiny  (or  sedition). 

II.  Beginning  a  mutiny  (or  sedition). 

III.  Joining  in  a  mutiny  (or  sedition). 

IV.  Exciting  a  mutiny  (or  sedition). 

V.  Causing  a  mutiny  (or  sedition). 

I.  ATTEMPTING  TO  CREATE  A  MUTINY  GC  SEDITION. 

An  attempt  to  commit  a  crime  is  an  act  done  with  specific 
intent  to  commit  the  particular  crime  and  proximately  tend- 
ing to,  but  falling  short  of,  its  consummation.  There  must 
be  an  apparent  possibility  to  commit  the  crime  in  the  manner 
specified.  Voluntary  abandonment  of  purpose  after  an  act 
constituting  an  attempt  is  not  a  defense. 

The  intent  which  distinguishes  mutiny  or  sedition  is  the 
intent  to  resist  lawful  authority  in  combination  with  others, 

359 


^f   417  CHAPTER  XYH, 

The  intent  to  create  a  mutiny  or  sedition  may  be  declared  in 
words,  or,  as  in  all  other  cases,  it  may  be  inferred  from  acts 
done  or  from  the  surrounding  circumstances. 

A  single  individual  may  harbor  an  intent  to  create  a 
mutiny  and  may  commit  some  overt  act  tending  to  create 
a  mutiny  or  sedition  and  so  be  guilty  of  an  attempt  to  create 
a  mutiny  or  sedition,  alike  whether  he  was  joined  by  others 
or  not,  or  whether  a  mutiny  or  sedition  actually  followed 
or  not. 

PROOF. 

(a)  An  act  or  acts  of  accused  which  approximately  tended 
to  create  a  certain  intended  (or  actual)  collective  insubordi- 
nation. 

(&)  A  specific  intent  to  create  a  certain  intended  (or 
actual)  collective  insubordination. 

(c)  That  the  insubordination  occurred  or  was  intended  to 
occur  in  a  company,  party,  post,  camp,  detachment,  guard, 
or  other  command  in  the  Army  of  the  United  States. 

II-III.   BEGINNING  OR  JOINING  IN  A  MUTINY  OR  SEDITION. 

There  can  be  no  actual  mutiny  or  sedition  until  there  has 
been  an  overt  act  of  insubordination  joined  in  by  two  or 
more  persons,  and  so  no  person  can  be  guilty  of  beginning 
or  joining  in  a  mutiny  unless  an  overt  act  of  mutiny  is 
proved.  A  person  can  not  be  guilty  of  beginning  a  mutiny 
unless  he  is  the  first,  or  among  the  first,  to  commit  an  overt 
act  of  mutiny;  a  person  can  not  join  in  a  mutiny  without 
joining  in  some  overt  act.  Hence  presence  of  the  accused  at 
the  scene  of  mutiny  is  necessary  in  these  two  cases. 

PROOF. 

(a)  The  occurrence  of  certain  collective  insubordination 
in  a  company,  party,  post,  camp,  detachment,  or  other  com- 
mand in  the  Army  of  the  United  States. 

(5)  That  the  accused  began  or  joined  in  the  certain  collec- 
tive insubordination. 


360 


PUNITIVE   ARTICLES   OF   WAR.  ^f    418 

IV-V.    CAUSING    OK    EXCITING    A   MUTINY    OR    SEDITION. 

As  in  II  and  III,  supra,  no  person  can  be  guilty  of  causing 
or  exciting  a  mutiny  unless  an  overt  act  of  mutiny  follows 
his  efforts.  But  a  person  may  excite  or  cause  a  mutiny  with- 
out taking  personal  part  in  or  being  present  at  the  demon- 
strations of  mutiny  which  result  from  his  activities. 

PROOF. 

(a)  The  occurrence  of  certain  collective  insubordination 
in   a  certain  company,  party,  post,  camp,  detachment,  or 
guard,  or  other  command  in  the  Army  of  the  United  States. 

(b)  Acts  of  the  accused  tending  to  cause  or  excite  the  cer- 
tain collective  insubordination. 

418.  Sixty-seventh  Article  of  War: 

Any  officer  or  soldier  who,  being  present  at  any  mutiny  or  sedition, 
does  not  use  his  utmost  endeavor  to  suppress  the  same,  or  knowing 
or  having  reason  to  believe  that  a  mutiny  or  sedition  is  to  take  place, 
does  not  without  delay  give  information  thereof  to  his  commanding 
officer  shall  suiter  death  or  such  other  punishment  as  a  court-martial 
may  direct. 

DEFINITIONS  AND  PRINCIPLES. 
See  "  Mutiny  and  Sedition,"  paragraph  417,  supra. 
ANALYSIS  AND  PROOF. 

The  article  applies  only  to  officers  and  soldiers.  It  does  not 
apply  to  members  of  the  Army  Nurse  Corps,  warrant  officers, 
Army  field  clerks,  field  clerks  Quartermaster  Corps,  or  any  other 
persons  subject  to  military  law,  except  officers  and  enlisted  men. 

It  defines  two  offenses  relating  to  mutiny  and  two  relating 
to  sedition. 

I.  Being  present  at  a  mutiny  (or  sedition),  failing  to  use 
the  utmost  endeavor  to  suppress  it. 

II.  Having  knowledge  or  reason  to  believe  that  a  mutiny 
(or  sedition)  is  to  take  place,  failing  to  give  information 
thereof  to  his  commanding  officer  without  delay. 

I.  FAILURE  TO  SUPPRESS  MUTINY   ( OR  SEDITION ) . 

Mere  presence  countenancing  such  collective  insubordina- 
tions and  disturbances  as  mutinies,  riots,  and  seditions  has 
been  considered  criminal  for  over  a  century.  The  article 

361 


^    418  CHAPTER  XVII. 

goes  a  step  further  and  requires  of  officers  and  soldiers  their 
utmost  endeavors  to  suppress  such  disorders. 

One  is  not  present  at  a  mutiny  unless  an  act  or  acts  of  col- 
lective insubordination  occur  in  his  presence. 

Utmost  endeavor  is  a  relative  term.  The  rule  governing 
the  lawful  use  of  force  to  suppress  crime  or  arrest  wrong- 
doers is  that  as  much  force  may  be  used  as  is  reasonably  neces- 
sary to  accomplish  the  desired  purpose,  and  no  more.  This 
article  has  been  construed  as  authorizing  and  requiring  the 
most  extreme  measures — even  to  the  using  of  a  dangerous 
weapon  and  the  taking  of  life — where  such  extreme  measures 
are  reasonably  necessary.  But  all  the  circumstances  of  neces- 
sity are  to  be  considered.  Means  which  in  war  and  before 
the  enemy  would  be  not  only  justified  but  laudable,  might, 
in  time  of  peace,  render  the  person  employing  them  crim- 
inally and  civilly  liable  for  abuse  of  authority. 

PROOF. 

(a)  The  occurrence  of  an  act  or  acts  of  collective  insubor- 
dination in  the  presence  of  the  accused. 

(b)  Acts  or  omissions  of  the  accused  which  constitute  a 
failure  to  use  his  utmost  endeavor  to  suppress  such  acts. 

II.   FAILURE  TO  GIVE  INFORMATION  OF  MUTINY    (OR  SEDITION.) 

Where  circumstances  known  to  the  accused  are  such  as 
would  have  caused  a  reasonable  man  in  the  same  or  similar 
circumstances  to  believe  that  a  mutiny  or  sedition  was  im- 
pending, these  circumstances  will  be  sufficient  to  charge  the 
accused  with  such  reason  to  believe  as  will  render  him  cul- 
pable under  the  article. 

It  is  not  a  necessary  element  of  the  crime  that  the  im- 
pending mutiny  or  sedition  materialize. 

"  Delay  "  imports  the  lapse  of  an  unreasonable  time  with- 
out action. 

The  expression  "  commanding  officer  "  here  includes  in  its 
meaning  any  officer  having  a  military  command  over  the 
person  who  has  knowledge  or  reason  to  believe  that  a  mu- 
tiny or  sedition  is  impending. 

302 


PUNITIVE  ARTICLES  OF  WAR.  If    419 

PEOOF. 

(a)  That  the  accused  knew  that  a  mutiny  or  sedition  was 
impending  or  that  he  knew  of  circumstances  that  would 
have  induced,  in  a  reasonable  man,  a  belief  that  a  mutiny  or 
sedition  was  impending. 

(b)  Acts  or  omissions  of  the  accused  which  constitute  a 
failure  or  unreasonable  delay  in  informing  his  commanding 
officer  of  his  knowledge  or  belief. 

NOTE. — Similar  acts  or  omissions  by  a  member  of  the  Army  Nurse 
Corps,  a  warrant  officer,  an  Army  field  clerk,  a  field  clerk  Quarter- 
master Corps,  or  any  other  person  subject  to  military  law,  except  a 
commissioned  officer  or  an  enlisted  man,  are  chargeable  under 
A.  W.  96. 

419.  Sixty-eighth  Article  of  War: 

All  officers.,  members  of  the  Army  Nurse  Corps,  warrant  officers,  Array 
field  clerks,  field  clerks  Quartermaster  Corps,  and  noncommissioned  offi- 
cers have  power  to  part  and  quell  all  quarrels,  frays,  and  dis- 
orders among?  persons  subject  to  military  law  and  to  order  offi- 
cers who  take  part  in  the  same  into  arrest,  and  other  persons 
•abject  to  military  law  who  take  part  in  the  same  into  arrest  or 
confinement,  as  circumstances  may  require,  until  their  proper 
superior  officer  is  acquainted  therewith.  And  whosoever,  being 
so  ordered,  refuses  to  obey  such  officer,  nurse,  band  leader,  warrant 
officer,  field  clerk,  or  noncommissioned  officer,  or  draws  a  weapon 
upon  or  otherwise  threatens  or  does  violence  to  him,  shall  he 
punished  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

A  fray  is  a  fight  in  a  public  place  to  the  terror  of  the 
people,  in  which  acts  of  violence  occur  or  dangerous  weapons 
are  exhibited  or  threatened  to  be  used.  All  persons  aiding 
or  abetting  a  fray  are  principals.  The  word  "  frays  "  is  thus 
seen  to  be  somewhat  restrictive,  but  the  words  "  quarrels  " 
and  "  disorders "  include  any  disturbance  of  a  contentious 
character  from  a  mere  war  of  words  to  a  rout  or  riot. 

To  quell  is  to  quiet,  allay,  abate,  or  put  down. 

It  is  immaterial  under  the  article  whether  the  officer,  mem- 
ber of  the  Army  Nurse  Corps,  warrant  officer,  Army  field  clerk, 
field  clerk  Quartermaster  Corps,  noncommissioned  officer  or 
other  person  authorized  by  the  article  so  to  do  who  essays  to 
part  or  quell  quarrels,  frays,  and  disorders  is  on  a  duty  status 
or  not,  as  it  is  immaterial  whether  the  persons  engaged  in 
the  disorder  are  superior  to  him  in  rank  or  not. 

363 


*y    419  CHAPTER  XVII. 

ANALYSIS  AND  PROOF. 

The  punitive  portion  of  the  article  applies  to  all  persons 
subject  to  military  law.  It  is  designed  to  enforce  the  au- 
thority of  officers  and  noncommisisoned  officers,  and  the  other 
persons  so  authorized  in  the  article,  to  part  arid  quell  certain 
disorders  and  to  order  the  participants  into  confinement  or 
arrest. 

The  article  defines  four  crimes : 

I.  Refusal  to  obey  an  order  of  an  officer,  member  of  the 
Army  Nurse  Corps,  warrant  officer,  Army  field  clerk,  field  clerk 
Quartermaster  Corps,  band  leader,  or  noncommissioned  officer 
placing  the  accused  in  arrest  or  confinement. 

II.  Upon  being  ordered  into  arrest  or  confinement,  draw- 
ing a  weapon  on  the  officer,  member  of  the  Army  Nurse  Corps, 
warrant   officer,    Army   field   clerk,    field   clerk    Quartermaster 
Corps,  band  leader,  or  noncommissioned  officer  giving  the 
order. 

III.  Upon  being  ordered  into  arrest  or  confinement,  threat- 
ening the  officer,  member  of  the  Army  Nurse  Corps,  warrant 
officer,  Army  field  clerk,  field  clerk  Quartermaster  Corps,  band 
leader,  or  noncommissioned  officer  giving  the  order. 

IV.  Upon  being  ordered  into  arrest  or  confinement,  doing 
violence  to  the  officer,  member  of  the  Army  Nurse  Corps,  war- 
rant officer,  Army  field  clerk,  field  clerk  Quartermaster  Corps, 
band  leader,  or  noncommissioned  officer  giving  the  order. 

I.  DISOBEDIENCE  OF  ORDERS  INTO  ARREST  OR  CONFINEMENT. 

It  should  appear  that  the  power  conferred  by  the  article 
was  being  exercised  for  the  purpose  stated,  and  therefore  the 
charges  and  proof  should  refer  to  the  order  given  during  the 
disorder.  It  should  be  made  to  appear  that  the  accused  heard 
or  understood  the  order  and  knew  that  the  person  giving  it 
was  an  officer  or  noncommissioned  officer,  or  other  person 
thereunto  authorized  by  the  article. 

PROOF. 

(a)  That  the  accused  was  a  participant  in  a  certain  quarrel, 
fra}T,  or  disorder  occurring  among  persons  subject  to  mili- 
tary law. 

364 


PUNITIVE   ARTICLES   OF   WAR.  *J    420 

(l>)  That,  during,  the  disorder  a  certain  officer,  member  of 
the  Army  Nurse  Corps,  warrant  officer,  Army  fie]4  clerk,  field 
clerk  Quartermaster  Corps,  band  leader,  or  noncommissioned 
officer  ordered  the  accused  into  arrest  (if  accused  is  an  offi- 
cer) or  into  arrest  or  confinement  (if  accused  is  a  person 
subject  to  military  law  other  than  an  officer),  with  a  view 
to  quell  or  part  the  disorder. 

(c)  That  the  accused  refused  to  obey. 

II,  III,  IV.  THREATENING,  DRAWING  A  WEAPON  UPON,  OR  OFFER- 
ING VIOLENCE  TO,  AN  OFFICER,  member  of  the  Army  Nurse 
Corps,  warrant  officer,  Army  field  clerk,  field  clerk  Quarter- 
master Corps,  band  leader,  OR  NONCOMMISSIONED  OFFICER. 

The  proof  of  the  second,  third,  and  fourth  crimes -defined 
b  v  the  article  should  follow  in  form  and  essentials  the  proof 
required  under  the  first  crime  (disobedience  of  order  inta 
arrest  or  confinement,  supra),  except  that  instead  of  proving 
a  refusal  to  obey  (clause  "(c)",  supra),  drawing  a  weapon, 
making  a  threat,  or  doing  violence  must  be  proved  as  the 
consummation  of  the  particular  offense.  The  word  threat  as 
here  used  includes  any  menacing  action,  either  by  gesture  or 
by  words. 

SECTION  IT. 

ARREST— CONFINEMENT. 

420.  Sixty -ninth  Article  of  War: 

Any  person  »ul>ject  to  military  law  chargred  with  crime  OP 
with  a  serious  offense  under  these  articles  shall  be  placed  in 
confinement  or  in  arrest  as  circumstances  may  require;  but 
when  charged  wttli  a  minor  effen»e  only  such  person  shall  not  ordi- 
narily be  placed  in  confinement.  Any  person  placed  in  arrest  under 
the  provisions  o£  this  article  shall  thereby  he  restricted  to  his 
Imrraefcs,  quarters,  or-  ten4,  unless  such  limits  shall  fo«  enlarged 
by  proyer  authority.  Ai»y  officer  or  cadet  who  brealts  his  arrest 
or  who  escapes  from  confinement,  whether  before  or  after  trial  or 
sentence  and  ?»efore  he  I»  set  at  liber-ty  Uy  proper  authority,  shall 
be  dismissed  from  the  service  or  suffer  such  other  punishment 
;;s  a  court-martial  may  direct;  and  any  other  person  subject  to 
military  Law  who  escapes  from  conituement  or  who  bi-eaJks  his 
arrest,  whether  before  or  after  trial,  or  sentence  and  before  he  i»  set  at 
liberty  by  proper  authority,  shall  be  punished  as  a  court- 
martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  distinction  between  arrest  and  confinement  lies  in  the 
difference  between  the  kinds  of  restraint  imposed.  In  arrest 

3C5 


If    420  CHAPTER   XVII. 

the  restraint  is  moral  restraint  imposed  by  the  orders  fixing 
the  limits  of'arrest,  or  by  the  terms  of  the  article.  Confine- 
ment imports  some  physical  restraint. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  all  persons  subject  to  military  law. 
The  article  defines  two  crimes : 

I.  Breach  of  arrest. 

II.  Escape  from  confinement. 

I.    BREACH  OF  ARREST. 

The  offense  is  committed  when  the  person  restrained  in- 
fringes the  limits  set  by  orders,  or.  by  the  sixty-ninth  article 
of  war,  and  the  intention  or  motive  that  actuated  him  is  im- 
material to  the  issue  of  guilt,  though,  of  course,  proof  of  in- 
advertence or  bona  fide  mistake  is  admissible  to  guide  the 
court  in  assessing  punishment.  The  unlawfulness  of  the 
arrest  is  a  valid  defense,  but  innocence  of  the  accusation  upon 
which  the  arrest  is  imposed  is  entirely  irrelevant. 

PEOOF. 

(a)     That  the  accused  was  duly  placed  in  arrest. 

(5)  That  before  he  was  set  at  liberty  by  proper  authority, 
whether  before  or  after  trial  or  sentence,  he  transgressed  the 
limits  fixed  by  the  sixty-ninth  article  of  war  or  by  the  orders 
of  proper  authority. 

II.  ESCAPE  FROM  CONFINEMENT. 

An  escape  may  be  either  with  or  without  force  or  artifice, 
and  either  with  or  without  the  consent  of  the  custodian.  Any 
completed  casting  off  of  the  restraint  of  confinement,  before 
being  set  at  liberty  by  proper  authority,  is  an  escape  from 
confinement,  and  a  lack  of  effectiveness  of  the  physical  re- 
straint imposed  is  immaterial  to  the  issue  of  guilt.  It  seems, 
however,  that  an  escape  is  not  complete  until  the  prisoner  has, 
momentarily  at  least,  freed  himself  from  the  restraint  of  his 
confinement,  so,  if  the  movement  toward  escape  is  opposed, 
or  before  it  is  completed  an  immediate  pursuit  ensues,  there 
will  be  no  escape  until  opposition  is  overcome,  or  pursuit  is 

3G6 


PUNITIVE  ARTICLES  OF  WAR.  ^[    42 Oj 

shaken  off.  In  cases  where  the  escape  is  not  completed  the 
offense  should  be  charged  as  an  attempt  under  the  ninety- 
sixth  article  of  war. 

PBOOF. 

(a)  That  the  accused  was  placed  in  confinement. 

(b)  That  he  freed  himself  from  the  restraint  of  his  confine- 
ment before  he  had  been  set  at  liberty  by  proper  authority, 
whether  before  or  after  trial  or  sentence. 

420£.  Seventieth  Article  of  War: 

Charges  and  specification*  must  be  signed  by  a  person  subject  to 
military  law,  and  under  oath  either  that  he  has  personal  knowledge 
of,  or  has  investigated,  the  matters  set  forth  therein,  and  that  the 
same  are  true  in  fact,  to  the  best  of  his  knowledge  and  belief. 

No  charge  will  be  referred  for  trial  until  after  a  thorough  and 
impartial  investigation  thereof  shall  have  been  mad*.  This  investi- 
gation will  include  inquiries  as  to  the  truth  of  the  matter  set  forth 
in  said  charges,  form  of  charges,  and  what  disposition  of  the  case 
should  be  made  in  the  interest  of  justice  and  discipline.  At  such 
investigation  full  opportunity  shall  be  given  to  the  accused  to  cross- 
examine  witnesses  against  him  if  they  are  available  and  to  present 
anything  he  may  desire  in  his  own  behalf,  either  in  defense  or  miti- 
gation, and  the  investigating  officer  shall  examine  available  wit- 
nesses requested  by  the  accused.  If  the  charges  are  forwarded  after 
such  investigation,  they  shall  be  accompanied  by  a  statement  of  the 
substance  of  the  testimony  taken  on  both  sides. 

Before  directing  the  trial  of  any  charge  by  general  court-martial 
the  appointing  authority  will  refer  it  to  his  staff  judge  advocate  for 
consideration  and  advice. 

When  any  person  subject  to  military  law  is  placed  in  arrest  or  con- 
finement immediate  steps  Trill  be  taken  to  try  the  person  accused  or 
to  dismiss  the  charge  and  release  him.  Any  officer  who  is  responsi- 
ble for  unnecessary  delay  in  investigating  or  carrying  the  case  to  a 
final  conclusion  shall  be  punished  as  a  court-martial  may  direct. 
When  a  person  is  held  for  trial  by  general  court-martial  the  com- 
manding officer  will,  within  eight  days  after  the  accused  is  arrested 
or  confined,  if  practicable,  forward  the  charges  to  the  officer  exercis- 
ing general  court-martial  jurisdiction  and  furnish  the  accused  a 
copy  of  such  charges.  If  the  same  be  not  practicable,  he  will  report 
to  superior  authority  the  reasons  for  delay.  The  trial  judge  advo- 
cate -will  cause  to  be  served  upon  the  accused  a  copy  of  the  charges 
upon  which  trial  is  to  be  had,  and  a  failure  so  to  serve  such  charges 
will  be  ground  for  a  continuance  unless  the  trial  be  had  on  the 
charges  furnished  the  accused  as  hereinbefore  provided.  In  time  of 
pence  no  person  shall,  against  his  objection,  be  brought  to  trial  be- 
fore a  general  court-martial  within  a  period  of  five  days  subsequent 
to  the  service  of  charges  upon  him. 

Definitions  and  Principles. 

As  to  distinction  between  "  arrest "  and  "  confinement "  see 
the  preceding  article. 

21358°— 20 24 

367 


^f    42  Oi  CHAPTEE  XVII. 

The  punitive  clause  of  this  article,  above  quoted,  has  no  ap- 
plication, except  in  cases  where  the  accused  is  placed  either 
in  arrest  or  confinement.  But  in  cases  where  the  accused  is  not 
arrested  or  confined,-  an  officer  responsible  for  unnecessary  and 
unusual  delay,  either  in  investigating  the  charges  or  in  carrying 
the  case  to  a  final  conclusion,  may  be  charged  with  neglect  to 
the  prejudice  of  good  order  and  military  discipline  under  the 
ninety-sixth  article  of  war. 

The  purpose  of  the  provision  above  quoted,  which  was  in- 
troduced into  the  seventieth  article  of  war  by  the  code  of  1920. 
is  to  insure  expedition  in  disposing  of  charges,  and  the  punish- 
ment of  officers  responsible  for  unnecessary  delay  in  connection 
therewith. 

Analysis  and  Proof. 

The  article  applies  only  to  officers. 
The  article  defines  two  offenses: 

I.  Unnecessary   delay   in   investigating   charges   against   an 
accused  in  arrest  or  confinement. 

II.  Unnecessary  delay  in  carrying  a  case  to  a  final  conclusion 
where  an  accused  is  placed  in  arrest  or  confinement. 

I.  Unnecessary  Delay  in  Investigating  Charges  Against  an  Accused 
in  Arrest  or  Confinement. 

PROOF. 

(a)  That  the  accused  is  an  officer. 

(b)  That,  as  alleged  in  the  specification,  the  accused  was,  as 
such  officer,  charged  with  the  duty  of  makiag  or  directing,  or 
assisting  in,  or  some  other  duty  in  connection  with,  the  investi- 
gation of  charges  against  an  accused  who  was  at  the  time  in 
•arrest  or  in  confinement,  as  the  case  may  be. 

(c)  That  in  such  investigation  there  was  unnecessary  delay, 
as  alleged  in  the  specification. 

(d)  Facts  and  circumstances  indicating  that  the  accused  was 
responsible  for  such  unnecessary  delay,  as  alleged  in  the  specifi- 
cation. 


80S 


PUNITIVE  ARTICLES  OF  WAR,  ^    421 

II.  Unnecessary   Belay  in   Carrying   a   Case   to    a   Final    Conclusion 
Where  an  Accused  Is  Placed  in  Arrest  or  Confinement. 


PROOF. 

(a)  That  the  accused  is  an  officer. 

(b)  That  the  accused,  as  such  officer,  was  charged  with  a 
certain  duty,  as  alleged  in  the  specification,  in  connection  with 
the  case  of  an  accused  person  who  was  placed  either  in  arrest 
or  in  confinement. 

(c)  That  a  certain  unnecessary  delay,  as  alleged  in  the  specifi- 
cation, occurred  in  carrying  the  case  of  such  accused  to  a  final 
conclusion. 

(d)  Facts  and  circumstances  indicating  that  the  accused  was 
responsible  for  such  unnecessary  delay. 

421.  Seventy --first  Article  of  War: 

No  provost  marshal  or  commander  of  a  gruard  shall  refuse  to  re- 
ceive or  keep  any  prisoner  committed  to  his  ehnrgc  by  an  officer  be- 
longing to  the  forces  of  the  United  States,  provided  the  officer  com- 
mittiiu;  shall,  at  the  time,  deliver  an  account  in  writing,  signed  by 
himself,  of  the  crime  or  offense  charged  ugrainst  the  prisoner.  Any 
officer  or  soldier  so  refusing  shall  be  punished  as  a  court-martial  may 
direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  words  "  commander  of  a  guard  "  include  a  commander 
of  any  rank  or  grade,  and  hence  a  noncommissioned  officer  or 
private.  The  term  "  any  prisoner  "  includes  civil  as  well  as 
military  prisoners  who  are  committed  according  to  the  terms 
of  the  article.  A  provost  marshal  or  commander  of  a  guard 
may  receive  a  prisoner  without  an  account  of  the  charge 
against  him  or  other  due  formality  of  commitment,  but  he 
must  receive  the  prisoner  where  the  required  account  in  writ- 
ing accompanies  the  commitment. 

A  mere  name  or  description  of  the  offense  charged  in  com- 
mon parlance  when  written  and  signed  by  the  committing 
officer  is  a  sufficient  "  account  in  writing." 


^f  422  CHAPTER  xvn. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  officers  and  soldiers. 
The  article  defines  one  crime : 

I.  REFUSING  TO  RECEIVE  OR  KEEP  A  PRISONER  COMMITTED  WITH  A 
WRITTEN  ACCOUNT  OF  THE  OFFENSE  CHARGED  AGAINST  HIM 
SIGNED  BY  THE  OFFICER  COMMITTING  THE  PRISONER. 

PEOOF. 

(a)  That  the  accused  was  a  provost  marshal  or  com- 
mander of  a  guard  in  the  military  forces  of  the  United  States. 

(6)  That  a  certain  prisoner  was  committed  to  his  charge 
by  a  certain  officer  belonging  to  the  forces  of  the  United 
States. 

(c)  That  at  the  time  of  commitment  the  committing  officer 
delivered  to  the  accused  a  written  account  of  the  crime  or 
offense  charged  against  the  prisoner,  which  account  was 
signed  by  the  committing  officer. 

(d)  That  the  accused  refused  to  receive  or  keep  the  pris- 
oner. 

422.  Seventy-second  Article  of  War: 

Kvery  commander  of  a  guard  to  whose  charge  a  prisoner  is  com- 
mitted shall,  within  twenty-four  hours  after  such  confinement,  or 
as  soon  as  he  is  relieved  from  his  guard,  report  in  writing-  to  the 
commanding  officer  the  name  of  such  prisoner,  the  offense  charged 
against  him,  and  the  name  of  the  officer  committing  him;  and  if  he 
fails  to  make  sucli  report,  he  shall  be  punished  as  a  court-martial 
may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

•  The  term  "  commander  of  a  guard  "  includes  commanders 
of  any  rank  or  grade. 

The  term  "  prisoner  "  includes  civilian  as  well  as  military 
prisoners. 

The  term  "  commanding  officer  "  imports  the  commander 
to  whom  the  guard  report  is  properly  made. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  all  persons  subject  to  military  law. 
It  defines  one  offense: 


370 


PUNITIVE  ARTICLES  OF  WAR.  ^f    423 

I.    FAILURE  TO  RENDER  A  REPORT  AS  PRESCRIBED. 
PEOOF. 

(a)  That  the  accused  was  commander  of  a  certain  guard 
in  the  military  forces  of  the  United  States. 

(I)  That  a  prisoner  was  committed  to  his  charge. 
(c)  That  the  accused — 

1.  Failed  to  make  any  report  at  all,  or, 

2.  That  the  report  rendered  was  not  in  writing,  or, 

3.  That  no  report  was  rendered  within  24  hours  after  con- 
finement, or  as  soon  as  accused  was  relieved  from  his  guard, 
or. 

4.  That  the  report  failed  to  set  forth  one  or  more  of  the 
particulars  prescribed. 

423.  Seventy -third  Article  of  War: 

Any  person  subject  to  military  law  who,  without  proper  authority, 
releases  any  prisoner  duly  committed  to  his  charge,  or  who  through 
neglect  or  design  suffers  any  prisoner  so  committed  to  escape,  shall 
be  punished  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  article  describes  three  long-recognized  common-law 
crimes. 

It  looks  to  the  punishment  of  any  person  who  is  respon- 
sible for  the  unauthorized  release  or  escape  of  a  prisoner 
duly  committed  to  his  charge,  and  hence  any  member  of 
a  guard,  party,  escort,  and  convoy,  or  any  person  subject 
to  military  law  to  whose  charge  a  prisoner  is  committed 
may  be  guilty  of  an  offense  under  this  article.  Where  a 
prisoner  is  committed  to  the  commander  of  a  guard,  party, 
escort,  or  convoy,  and  is  released  by,  or  escapes  from,  a 
subordinate  or  subordinates  to  whom  the  commander  has 
duly  delegated  custody  of  the  prisoner,  or  to  whom  that 
custody  duly  falls  as  an  incident  of  duty,  ;ill  will  be  re- 
sponsible under  this  article,  except  those  who  can  show  that 
the  escape  or  release  occurred  under  circumstances  against 
which  they  could  not  reasonably  guard. 


371 


^f    423  CHAPTER   XVII. 

The  words  "any  prisoner"  import  both  military  and 
civilian  prisoners. 

A  person  may  receive  a  prisoner  in  his  capacity  as  com- 
mander or  member  of  a  guard,  or  he  may  be  burdened  with 
such  a  responsibility  as  a  personal  trust.  In  the  former 
case,  the  lowest  authority  competent  to  release  the  prisoner 
is  the  chief  of  the  command  of  the  guard  by  which  the  pris- 
oner is  held.  In  the  latter  case,  the  authority  who  has  im- 
posed the  trust,  and  who  was  competent  to  do  so,  is  the 
lowest  "  proper  authority  "  to  order  a  release. 

While  a  commander  of  the  guard  must  receive  a  prisoner 
properly  committed  by  any  officer,  the  power  of  the  commit- 
ting officer  ceases  as  soon  as  he  has  committed  the  prisoner, 
and  he  is  not  a  "  proper  authority  "  to  order  a  release. 

An  officer  is  not  responsible  under  this  article  unless  the 
prisoner  was  duly  committed,  but,  as  was  pointed  out  in 
the  discussion  of  the  seventy-first  article,  an  officer  may 
receive  a  prisoner  not  committed  in  strict  compliance  with 
the  terms  of  that  article  or  other  law,  and  if,  having  so 
received  a  prisoner,  he  releases  such  prisoner,  or  suffers  him 
to  escape,  he  may  be  held  to  answer,  under  the  ninety-sixth 
article,  for  any  dereliction  of  duty  that  may  be  predicated 
on  his  conduct  in  the  case. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  three  crimes: 

I.  Releasing  a  prisoner  without  proper  authority. 

II.  Suffering  a  prisoner  to  escape  through  neglect. 

III.  Suffering  a  prisoner  to  escape  through  design. 

I.  RELEASING  A  PRISONER  WITHOUT  PROPER  AUTHORITY. 

A  release  imports  a  removal  of  restraint  from  the  prisoner 
in  which  the  custodian  is  the  sole  actor,  and  in  which  the  pris- 
oner takes  no  initiative. 

PROOF. 

(a)  That  a  certain  prisoner  was  duly  committed  to  the 
charge  of  the  accused. 

(fr)  That  the  accused  released  him  without  proper  au- 
thority. 

372 


PUNITIVE  ARTICLES   OF  WAR.  *[f    423 

II.  SUFFERING  A  PRISONER  TO  ESCAPE  THROUGH  NEGLECT. 

The  word  "  neglect "  is  here  used  in  the  sense  of  the  word 
"  negligence," 

Negligence  is  a  relative  term.  It  is  denned  in  law  as  the 
absence  of  due  care.  The  legal  standard  of  care  is  that  which 
would  have  been  taken  by  a  reasonably  prudent  man  in  the 
same  or  similar  circumstances.  This  test  looks  to  the  stand- 
ard required  of  persons  acting  in  the  capacity  in  which  the 
accused  was  acting.  Thus,  if  the  accused  is  an  officer,  the  test 
will  be,  "How  would  a  reasonably  prudent  officer  have 
acted?"  If  the  circumstances  were  such  as  would  have  indi- 
cated to  a  reasonably  prudent  officer  that  a  very  high  order 
of  care  was  required  to  prevent  escape,  then  the  accused  must 
be  held  to  a  very  high  order  of  care.  The  test  is  thus  elastic, 
logical,  and  just. 

A  prisoner  can  not  be  said  to  have  escaped  until  he  has 
overcome  the  opposition  that  restrained  him  and  shaken  off 
immediate  pursuit.  Once  he  has  done  these  things,  the  fact 
that  he  returns,  is  taken  in  a  fresh  pursuit,  is  killed,  or  dies, 
will  not  relieve  the  person  accused  of  guilt  under  this  article. 


PROOF. 


(a)  That  a,  certain  prisoner  was  duly  committed  to  the 
charge  of  the  accused. 

(ft)   That  the  prisoner  escaped. 

(c)  That  the  accused  did  not  take  such  care  to  prevent 
escape  as  a  reasonably  prudent  person,  acting  in  the  capacity 
in  which  the  accused  was  acting,  would  have  taken  in  the 
same  or  similar  circumstances.     (This  constitutes  neglect.) 

(d]  That  the  escape  was  the  proximate  result  of  the  neg- 
lect of  the  accused. 

Til.   SUFFERING  A  PRISONER  TO  ESCAPE  THROUGH  DESIGN. 

In  law  a  wrongful  act  is  designed  when  it  is  intended  or 
when  it  results  from  conduct  so  shockingly  and  grossly  de- 
void of  care  as  to  leave  room  for  no  inference  but  that  the 
act  was  contemplated  as  an  extremely  probable  result  of  the 
course  of  conduct  followed.  Thus,  on  a  charge  of  suffering 
a  prisoner  to  escape  through  design,  evidence  of  gross  negli- 
gence may  be  received  as  probative  of  design. 


373 


^    424  CHAPTER  XVII. 

It  sometimes  happens  that  a  prisoner  has  been  permitted 
larger  limits  than  should  have  been  allowed,  and  an  escape 
is  consummated  without  hindrance.  It  does  not  at  all  follow 
that  such  an  escape  is  to  be  considered  as  designed.  The  con- 
duct of  the  responsible  custodian  is  to  be  examined  in  the 
light  of  all  the  circumstances  of  the  case,  the  heinousness  of 
the  crime  with  which  the  prisoner  is  charged,  the  notoriety 
of  the  prisoner's  guilt,  the  probability  of  his  return,  and  the 
intention  and  motives  of  the  custodian. 

PROOF. 

(a)  That  a  certain  prisoner  was  duly  committed  to  the 
charge  of  the  accused. 

(5)  That  the  prisoner  escaped. 

(c)  1.  Acts  of  the  accused  tending  to  permit  escape.    2. 
Acts  of  the  accused  probative  of  a  design  to  suffer  the  escape. 

(d)  That  as  a  result  of  these  acts  and  of  this  design  the 
prisoner  escaped. 

424.  Seventy- fourth  Article  of  War: 

When  any  person  subject  to  military  law,  except  one  -who  is  held 
by  the  military  authorities  to  answer,  or  who  is  awaiting  trial  or 
result  of  trial,  or  who  is  undergoing  sentence  for  a  crime  or  offense 
punishable  under  these  articles,  is  accused  of  a  crime  or  offense  com- 
mitted within  the  geographical  limits  of  the  States  of  the  Union  and 
the  District  of  Columbia,  and  punishable  by  the  laws  of  the  land,  the 
commanding  officer  is  required,  except  in  time  of  war,  upon  applica- 
tion duly  made,  to  use  his  utmost  endeavor  to  deliver  over  such 
accused  person  to  the  civil  authorities,  or  to  aid  the  officers  of 
justice  in  apprehending  and  securing  him,  in  order  that  he  may  be 
brought  to  trial.  Any  commanding  officer  who  upon  such  applica- 
tion refuses  or  •willfully  neglects,  except  in  time  of  war,  to  deliver 
over  such  accused  person  to  the  civil  authorities  or  to  aid  the  oflicers 
of  justice  in  apprehending  and  securing  him  shall  be  dismissed  from 
the  service  or  suffer  such  other  punishment  as  a  court-martial  ma) 
direct. 

"When,  under  the  provisions  of  this  article,  delivery  is  made  to  the 
civil  authorities  of  an  offender  undergoing  sentence  of  «.  court- 
martial,  such  delivery,  if  followed  by  conviction,  shall  be  held  to 
interrupt  the  execution  of  the  sentence  of  the  court-martial,  and  the 
offender  shall  be  returned  to  military  custody,  after  having  an- 
swered to  the  civil  authorities  for  his  offense,  for  the  completion 
of  the  said  court-martial  sentence. 

DEFINITIONS  AND  PRINCIPLES. 
I.  REFUSING  TO  DELIVER  ACCUSED  PERSONS. 

The  words  "commanding  officer,"  as  here  used,  import 
the  officer  who  is  chief  of  the  complete  integral  place,  body 

374 


PUNITIVE  ARTICLES   OF  WAR.  If    424 

of  troops,  or  detachment,  wherein  the  person  accused  is 
serving  at  the  time  application  is  duly  made.  The  words 
"  upon  application  duly  made  "  prescribe  a  condition  prece- 
dent to  responsibility.  They  are  inserted  to  prevent  the 
possibility  of  false  arrests,  and  to  enable  the  commanding 
officer  to  satisfy  himself  of  the  true  official  character  of 
him  who  makes  the  application,  of  the  subsistence  of  an 
actual  accusation  against  the  person  sought,  and  of  the  locus 
of  the  charged  crime  or  offense. 

The  commanding  officer  should  require  that  the  applica- 
tion show  that  the  crime  or  offense  is  alleged  to  have  been 
committed  within  the  geographical  limits  of  the  States  of 
the  Union  and  the  District  of  Columbia.  A  sufficient  form 
of  application  will  be  a  written  communication  setting  forth 
the  fact  of  such  an  accusation  of  a  crime  or  offense  com- 
mitted within  the  prescribed  limits  as  would  subject  the 
accused  person  to  arrest  by  the  civil  authorities  for  the  pur- 
poses of  trial,  or  that  a  warrant  for  such  arrest  has  issued, 
and  a  request  that  the  commanding  officer  deliver  the  per- 
son accused  to  the  civil  authorities  or  assist  them  in  ap- 
prehending or  securing  him.  When  the  military  jurisdic- 
tion has  actively  attached  in  any  of  the  ways  prescribed 
in  the  article,  the  commanding  officer  may,  but  he  is  not 
required  to,  make  the  prescribed  delivery. 

II.    REFUSING   TO   AID   IN   APPREHENDING  ACCUSED    PERSONS. 

The  commanding  officer  is  required  not  only  to  deliver  the 
person  accused  but  to  aid  in  apprehending  and  securing 
him.  The  article  therefore  contemplates  cases  where,  after 
apprehension  by  either  the  military  or  civil  authorities,  an 
application  is  duly  made  to  a  commanding  officer  for  his 
assistance  in  securing  a  person  subject  to  military  law  and 
accused  of  crime. 

"  Utmost  endeavor "  is  to  be  understood  in  a  reasonable 
sense  with  reference  to  the  circumstances  of  the  particular 
case.  Thus,  if  the  accused  is  not  within  military  control, 
as  where  he  is  absent  as  a  deserter,  nothing  more  can  be 
required  of  a  commander  than  to  furnish  civil  authority 


375 


^f  424  CHAPTER  xvn. 

such  information  of  his  whereabouts  and  the  prospect  of 
his  return  as  may  be  available. 

While  commanding  officers  are  enjoined  to  use  their  ut- 
most endeavor  in  carrying  out  the  provisions  of  this  law, 
a  mere  inadvertent  neglect  to  take  some  necessary  step  toward 
delivery,  apprehension,  or  securing  of  the  person  accused 
will  not  constitute  an  offense  under  this  article,  which  con- 
templates only  refusals  and  willful  neglects  to  act. 

ANALYSIS  AND  PROOF. 

The  punitive  portion  of  the  article  applies  only  to  officers, 
but  the  obligation  to  deliver  or  assist  in  apprehending  and 
securing  rests  on  all  persons  subject  to  military  law. 

The  article  defines  two  offenses : 

I.  Refusing  or  willfully  neglecting  to  deliver  an  accused 
person. 

II.  Refusing  or  willfully  neglecting  to  aid  in  apprehend- 
ing and  securing  an  accused  person. 

The  essentials  of  proof  are  similar  in  both  cases. 

PEOOF, 

(a)  That  the  accused  was  the  commanding  officer  of  a 
certain  integral  place,  body  of  troops,  or  detachment. 

(b)  That  a  certain  person  subject  to  military  law  under  his 
command  stood  accused  of  a  certain  crime  or  offense,  commit- 
ted within   the  geographical   limits  of  the   States  of   the 
Union  and  the  District  of  Columbia. 

(c)  That  application  was  duly  made  to  the  accused  offi- 
cer by  a  person  in  proper  civil  authority — 

1.  To  deliver  the  accused  person  to  the  civil  authori- 

ties ;  or 

2.  To  aid  the  officers  of  justice  in  apprehending  and 

securing,  or  either,  the  accused  person. 

(d)  Acts  or  omissions  of  the  accused  officer  which  consti- 
tute a  refusal  or  a  willful  neglect  to  deliver  the  accused  per- 
son or  to  aid  in  apprehending  or  securing  him. 


870 


PUNITIVE  ARTICLES  OF  WAR.  ^    425 

SECTION  V. 
WAR  OFFENSES. 

425.  Seventy --fifth  Article  of  War: 

Any  officer  or  soldier  who,  before  the  enemy,  misbehaves  himself, 
runs  away,  or  shamefully  abandons  or  delivers  up  or  by  any  mis- 
conduct, disobedience,  er  neglect  endangers  the  safety  of  any  fort,  post, 
camp,  guard,  or  other  command  which  it  is  his  duty  to  defend, 
or  speaks  words  inducing  others  to  do  the  like,  or  casts  away 
his  arms  or  ammunition,  or  quits  his  post  or  colors  to  plunder 
or  pillage,  or  by  any  means  whatsoever  occasions  false  alarms 
in  camp,  garrison,  or  quarters,  shall  suffer  death  or  such  other 
punishment  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

Misbehavior  is  by  no  means  confined  to  acts  of  cowardice. 
It  is  a  general  term,  and  as  here  used  it  renders  culpable 
under  the  article  any  conduct  by  an  officer  or  soldier  not  con- 
formable to  the  standard  of  behavior  before  the  enemy  set 
by  the  history  of  our  arms.  Running  away  is  but  a  particu- 
lar form  of  misbehavior  specifically  made  punishable  by  this 
article. 

"  The  enemy  "  imports  any  hostile  body  that  our  forces 
may  be  opposing  and  well  includes  a  rebellious  mob,  a  band 
of  renegades,  or  a  tribe  of  Indians. 

ANALYSIS  AND  PROOF. 

The  article  applies  only  to  officers  and  soldiers.  It  defines 
eight  offenses : 

I.  Misbehavior  before  the  enemy. 

II.  Running  away  before  the  enemy. 

III.  Shamefully  abandoning  or  delivering  up  any  com- 
mand. 

IV.  Endangering  the  safety  of  any  command  by  any   (1) 
misconduct,  (2)  disobedience,  or  (3)  neglect. 

V.  Speaking  words  inducing  others  to  so  misbehave,  run 
away,  or  abandon  or  deliver  up  or  endanger  the  safety  of 
any  command. 

VI.  Casting  away  arms  or  ammunition. 

VII.  Quitting  post  or  colors  to  plunder  or  pillage. 

VIII.  Occasioning  false  alarms. 


377 


^    425  CHAPTER  XVII. 

I.    MISBEHAVIOR  BEFORE  THE  ENEMY. 

Under  this  clause  may  be  charged  any  act  of  treason,  cow- 
ardice, insubordination,  or  other  unsoldierly  conduct  com- 
mitted in  the  presence  of  the  enemy. 

PROOF. 

(a)  That  the  accused  was  serving  in  the  presence  of  an 
enemy. 

(b)  Acts  or  omissions  of  the  accused  not  conformable  to 
the  standard  of  soldierly  conduct  set  by  the  history  of  our 
arms. 

II.    RUNNING  AWAT  BEFORE  THE  ENEMY. 

(a)  That  the  accused  was  serving  in  the  presence  of  an 
enemy. 

(5)  That  he  misbehaved  himself  by  running  away. 

III.  SHAMEFULLY  ABANDONING  OR  DELIVERING  UP  ANY 
COMMAND. 

While  the  word  "  abandon  "  is  broad  enough  to  include  a 
case  in  which  a  soldier  or  a  subordinate  officer  leaves  a  fort, 
post,  guard,  or  command  which  it  is  his  duty  to  defend,  it 
is  probable  that  this  clause  of  the  article  looks  only  to  offenses 
by  the  commanding  officers  of  such  commands,  and  that 
abandonment  by  a  subordinate  should  be  charged  as  misbe- 
havior or  running  away. 

The  words  "  deliver  up  "  are  synonymous  with  the  word 
"  surrender." 

The  surrender  or  abandonment  of  a  command  by  an  officer 
charged  with  its  defense  can  only  be  justified  by  the  utmost 
necessity  and  extremity,  such  as  the  exhaustion  of  provisions 
or  water,  the  absence  of  hope  of  relief,  and  the  certainty  or 
extreme  probability  that  no  further  effort  could  prevent  the 
place,  with  its  garrison,  their  arms,  and  magazines,  from 
presently  falling  into  the  hands  of  the  enemy.  Unless  such 
absolute  necessity  is  shown,  the  conclusion  must  be  that  the 
surrender  or  abandonment  was  shameful  within  the  mean- 
ing of  this  article. 

An  officer's  duty  to  defend  may  be  imposed  by  orders  or  by 
the  circumstances  in  which  he  finds  himself  at  a  particular 

878 


PUNITIVE  ARTICLES  OF  WAR.  ^f    425 

stage  of  operations;  but  an  officer  will  find  less  justification 
in  abandoning  a  post  that  he  has  been  ordered  to  defend  than 
in  abandoning  one  that  he  has  decided  to  defend.  He  will 
have  less  justification  in  delivering  up  a  post  than  in  abandon- 
ing it,  and  in  delivering  up  a  post  that  he  has  been  ordered 
to  defend  he  will  have  no  justification  at  all  except  such  as 
can  be  found  in  proof  that  no  further  resistance  was  possible. 

PEOOF. 

(a)  That  the  accused  was  charged  by  orders  or  by  circum- 
stances with  a  duty  to  defend  a  certain  fort,  post,  camp, 
guard,  or  other  command. 

(b)  That  without  justification  he  abandoned  it  or  surren- 
dered it. 

IV.  Endangering  the  Safety  of  Any  Command  by  Any  (1)  Misconduct, 

(2)  Disobedience,  or  (3)  Neglect. 

"  Misconduct,"  like  misbehavior,  implies  a  wrongful  inten- 
tion, and  not  a  mere  error  of  judgment.  It  means  in  general  "  a 
transgression  of  some  established  and  definite  rule  of  action, 
where  no  discretion  is  left,  except  what  necessity  may  de- 
mand " ;  whereas  on  the  other  hand  carelessness  and  negligence 
and  unskillfullness  are  transgressions  of  some  established,  but 
indefinite  rule  of  action  where  some  discretion  is  necessarily  left  to 
the  actor.  "  Misconduct "  is  a  violation  of  definite  law ;  "  care- 
lessness a  forbidden  quality  of  an  act  and  is  necessarily  in- 
definite." (Vol.  5,  "  Words  and  Phrases,"  p.  4531.) 

As  to  "  disobedience,"  see  Subparagraph  II,  paragraph  415, 
supra,  under  A.  W.  64. 

PROOF. 

Facts  and  circumstances  showing  that  the  accused  endangered 
the  safety  of  a  certain  command,  as  alleged,  by  certain  (1)  mis- 
conduct, (2)  disobedience,  or  (3)  neglect,  as  alleged  (as  the 
case  may  be). 

V.  SPEAKING     WORDS     INDUCING     OTHERS     TO     MISBEHAVE,     RUN 

AWAY,  OR  ABANDON  OR  DELIVER  UP  or  endanger  the  safety  of 

ANY  COMMAND. 

The  words  "to  do  the  like"  refer  to  the  offenses  of  mis- 
behavior and  running  away,  as  well  as  to  abandoning  or 
delivering  up  or  endangering  the  safety  of  a  command. 

379 


^f    425  CHAPTER  XVII. 

The  inducement  contemplated  is  verbal  only,  but  it  may 
include  any  argument,  persuasion,  threat,  language  of  dis- 
couragement or  alarm,  or  false  or  incorrect  statement  which 
may  avail  to  bring  about  an  unnecessary  surrender,  retreat, 
or  any  misbehavior,  or  endanger  the  safety  of  the  command, 
before  the  enemy.  The  offense  will  not  be  complete,  hovvT- 
ever,  unless  the  words  spoken  do  induce  some  person  other 
than  tfie  accused  to  misbehave,  run  away,  or  abandon  or 
surrender,  or  by  some  misconduct,  disobedience,  or  neglect 
endanger  the  safety  of,  a  command.  It  is  to  be  noted,  how- 
ever, that  speaking  words  whose  natural  tendency  is  to  in- 
duce others  to  do  any  of  these  things  may  in  itself  constitute 
misbehavior  of  the  speaker  within  the  meaning  of  the  article, 
although  the  words  spoken  induce  no  misconduct  on  the  part 
of  others. 

PROOF. 

(a)  That  some  person  other  than  the  accused  misbehaved 
in  the  presence  of  the  enemy  or  ran  away  or  abandoned  or 
delivered  up,  or  by  some  misconduct,  disobedience,  or  neglect 
endangered  the  safety  of,  any  command  which  it  was  his  duty 
to  defend. 

(b)  Words  spoken  by  the  accused  which  induced  such 
action. 

VI.    CASTING  AWAY  ARMS  OR  AMMUNITION. 
PBOOF. 

(a)  That  the  accused  cast  away  certain  arms  or  ammuni- 
tion as  specified. 

VII.  QUITTING  POST  OR  COLORS  TO  PLUNDER  Olt  PILLAGE. 

The  word  "  post "  includes  any  place  of  duty,  whether  per- 
manently or  temporarily  fixed.  The  term  "  colors  "  was  used 
to  include  cases  where  the  offender's  organization  is  moving, 
but  the  words  "  quits  his  post,"  as  here  used,  import  any  un- 
authorized leaving  of  that  place  where  the  accused  should  be. 

In  proving  this  crime  an  intent  to  pillage  or  plunder  must 
be  shown.  The  words  "  to  pillage  or  plunder  "  may  be  prop- 
erly paraphrased  "  to  seize  and  appropriate  public  or  pri- 
vate property."  The  offense  is  no  less  committed,  though 

3SO 


PUNITIVE  ARTICLES  OF  WAR.  ^f    425 

the  quitting  is  by  quasi  authority,  as  where  soldiers  quit  the 
place  where  they  should  be  to  go  forth  and  maraud  in  com- 
pany with  an  officer  or  noncommissioned  officer. 

The  act  is  complete  when  the  accused  has  left  his  post  with 
the  described  intent,  although  he  may  never  have  consum- 
mated his  design. 


(a)  That  the  accused  left  his  post  of  duty. 
(6)  That  the  intention  of  the  accused  in  leaving  was  to 
seize  and  appropriate  private  or  public  property. 

VIH.    OCCASIONING    FALSE   ALARMS. 

The  article  is  intended  as  well  to  guard  the  repose  and 
tranquillity  of  troops  as  to  avoid  the  ill  effect  or  morale 
which  must"  inevitably  follow  needless  excursions  and  alarms. 
The  article  contemplates  the  spreading  of  false  and  disturb- 
ing rumors  and  reports  as  well  as  the  needless  giving  of  such 
alarm  signals  as  the  beating  of  drums  and  the  blowing  of 
trumpets. 

The  intent  is  immaterial.  If  the  alarm  was  given,  and  it 
appears  that  there  was  no  material  cause  or  occasion  which 
should  reasonably  justify  a  general  alarm,  the  offense  is  com- 
plete. 

PROOF. 

(a)  That  an  alarm  was  occasioned  in  a  certain  camp,  gar- 
rison, or  quarters. 

(&)   Conduct  of  the  accused  which  occasioned  the  alarm. 

(c)  That  there  was  no  reasonable  or  sufficient  justification 
in  fact  for  occasioning  the  alarm. 

NOTE. — "  Officer  or  Soldier." — No  one  except  a  commissioned  officer 
or  an  enlisted  man  can  be  tried  under  the  seventy-fifth  article  of 
•war.  Any  other  person  subject  to  military  law,  such  as  a  member  of 
the  Army  Nurse  Corps,  a  warrant  officer,  an  Army  field  clerk,  or  a 
field  clerk  Quartermaster  Corps,  can  not  be  charged  under  this 
article,  but  for  the  offenses  denounced  in  this  article  may  be  tried 
under  the  ninety-sixth  article  of  war,  under  which,  however,  the 
death  penalty  can  not  be  inflicted. 


381 


•f    426  CHAPTER   XVII. 

426.  Seventy-sixth  Article  of  War: 

Any  person  subject  to  military  lavr  who  compels  or  attempts  to 
compel  any  commander  of  any  garrison,  fort,  post,  camp,  guard, 
or  other  command,  to  give  it  up  to  the  enemy  or  to  abandon  it 
shall  be  punishable  with  death  or  such  other  punishment  as  a 
court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

When  the  surrender  or  abandonment  of  a  command  is 
induced  or  attempted  to  be  brought  about  by  words  spoken, 
the  offense  should  be  charged  under  the  seventy-fifth  article. 
Where  the  surrender  or  abandonment  is  compelled  or  at- 
tempted to  be  compelled  by  acts  rather  than  words,  the  charge 
should  be  laid  under  the  present  article. 

The  offenses  here  contemplated  are  very  like  that  of  a 
mutiny  which  results  in  the  surrender  or  abandonment  of 
any  command,  or  like  an  attempt  to  mutiny,  but,  unlike 
mutiny,  no  concert  of  action  is  an  essential  element  of  these 
offenses.  The  offense  of  compelling  the  giving  up  or  abandon- 
ment of  the  garrison,  etc.,  is  not  complete  until  the  command 
is  abandoned  or  given  up  to  the  enemy.  The  offense  of  at- 
tempting to  compel  any  commander  of  any  garrison,  etc.,  to 
give  it  up  to  the  enemy  or  to  abandon  it  does  not  require  an 
actual  abandonment  or  giving  up  of  the  garrison,  etc.,  to  the 
enemy;  but  there  must  be  some  act  done  with  this  purpose  in 
view,  but  which  falls  short  of  an  actual  accomplishment  of  the 
purpose.  See  paragraph  425  for  meaning  of  abandon;  to 
"  give  up  "  is  to  be  interpreted  as  meaning  the  same  as  "  de- 
livers up  "  in  paragraph  425. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  two  crimes. 

I.    COMPELLING    COMMANDER    TO    SURRENDER. 

(a)  That  a  certain  commander  has  abandoned  his  com- 
mand or  given  it  up  to  the  enemy. 

(5)  Acts  or  omissions  of  the  accused  that  compelled  the 
commander  to  abandon  his  command  or  give  it  up  to  the 
enemy. 


882 


PUNITIVE  ARTICLES  OF  WAR.  ^f    427 

II.  Attempting-  to  Compel  Commander  to  Surrender. 

TROOP. 

(a)  That  a  certain  commander  was  in  command  of  a  garrison, 
fort,  post,  camp,  guard,  or  other  command. 

(b)  Acts  or  omissions  of  the  accused  done  or  omitted  with  the 
intent  or  purpose  of  compelling  such  commander  to  abandon  it 
or  give  it  up  to  the  enemy. 

427.  Seventy -seventh  Article  of  War: 

Any  person  subject  to  military  law  who  makes  known  the 
parole  or  countersign  to  any  person  not  entitled  to  receive  it 
according  to  the  rnles  and  discipline  of  war,  or  gives  a  parole 
or  countersign  different  from  that  which  he  received,  shn.ll,  if 
the  offense  be  committed  in  time  of  war,  suffer  death  or  such 
other  punishment  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

A  countersign  is  a  word  given  from  the  principal  head- 
quarters of  a  command  to  aid  guards  and  sentinels  in  their 
scrutiny  of  persons  who  apply  to  pass  the  lines. 

A  parole  is  a  word  used  as  a  check  on  the  countersign.  It 
is  imparted  only  to  those  who  are  entitled  to  inspect  guards 
and  to  commanders  of  guards. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 
It  defines  two  offenses : 

I.  Making  known  the  parole  or  countersign. 

II.  Giving  a  parole  or  countersign  different  from  that  re- 
ceived. 

I.    MAKING  KNOWN  THE  PAROLE  OR  COUNTERSIGN. 

The  class  of  persons  entitled  to  receive  the  countersign  will 
expand  and  contract  under  the  varying  circumstances  of  war. 
Who  these-persons  are  will  be  determined  largely,  in  any  par- 
ticular case,  by  the  general  or  special  orders  under  which  the 
accused  was  acting.  It  is  no  defense  under  the  terms  of  this 
law  that  the  accused  did  not  know  that  the  person  to  whom 
he  communicated  the  countersign  or  parole  was  not  entitled 
to  receive  it.  Before  imparting  such  a  word  it  behooves  a 
person  subject  to  military  law  to  determine  at  his  peril  that 

21358°— 20 25 

383 


CHAPTER   XVII. 

the  person  to  whom  he  presumes  to  make  known  the  word 
is  a  person  authorized  to  receive  it. 

The  intent  or  motive  that  actuated  the  accused  is  imma- 
terial to  the  issue  of  guilt,  as  would  also  be  the  circumstance 
that  the  imparting  was  negligent  or  inadvertent.  It  is  like- 
wise immaterial  whether  the  accused  had  himself  received  the 
password  in  the  regular  course  of  duty  or  whether  he  obtained 
it  in  some  other  way. 

PROOF. 

(a)  That  the  accused  made  known  the  countersign  or 
parole  to  a  certain  person,  known  or  unknown. 

( b )  That  the  person  was  not  entitled  to  receive  it. 

II.    GIVING    A    PAROLE    OR   COUNTERSIGN    DIFFERENT   FROM    THAT 

RECEIVED. 

The  intent  or  motive  that  actuated  the  accused  is  imma- 
terial to  the  issue  of  guilt. 

PROOF, 

(a)  That  the  accused  received  a  certain  countersign  or 
parole. 

(b)  That  he  gave  a  parole  or  countersign  different  from 
that  which  he  received. 

428.  Seventy -eighth  Article  of  War: 

Any  person  subject  to  military  law  who,  In  time  of  war,  forces 
a  *afe«rnar«l  ahull  suffer  death,  or  anch  other  puiiiMliment  an  a 
conrt-mnrtinl  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

A  safeguard  is  a  detachment,  guard,  or  detail  posted  by  a 
commander  for  the  purpose  of  protecting  some  person  or  per- 
sons, place,  or  property.  The  term  also  imports  a  written 
order  left  by  a  commander  with  an  enemy  subject  or  posted 
upon  enemy  property  for  the  protection  of  the  individual  or 
property  concerned. 

Any  trespass  on  the  protection  of  the  safeguard  will  con- 
stitute an  offense  under  the  article,  provided  that  the  accused 
was  aware  of  the  existence  of  the  safeguard. 


PUNITIVE   ARTICLES   OF   WAR.  ^f    429 

ANALYSIS  AND  PROOF. 

The  article  applies  to  all  persons  subject  to  military  law. 
It  defines  one  offense: 

I.    FORCING  A  SAFEGUARD. 
PROOF. 

(a)  That  a  safeguard  had  been  issued  or  posted  for  the 
protection  of  a  certain  person  or  persons,  place,  or  property. 

(7))  That,  with  knowledge  of  the  safeguard,  or  under  cir- 
cumstances that  charged  him  with  notice  of  the  safeguard, 
the  accused  trespassed  upon  its  protection. 

429.  Seventy-ninth  Article  of  War: 

All  pnbllc  property  taken  from  the  enemy  la  the  property  of 
the  United'  States  and  shall  be  secured  for  the  service  of  the 
United  Stntes,  and  any  person  subject  to  military  law  who  neg- 
lects to  seenre  such  property  or  is  guilty  of  wrongful  appropria- 
tion thereof  shall  be  punished  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES, 

Immediately  upon  its  capture  from  the  enemy  public  prop- 
erty becomes  the  property  of  the  United  States.  Neither  the 
individual  who  takes  it  nor  any  other  person  has  any  private 
right  in  such  property.  On  the  contrary,  every  person  subject 
to  military  law  has  an  immediate  duty  to  take  such  steps  as 
are  within  his  powers  and  functions  to  secure  such  property 
to  the  service  of  the  United  States. and  to  protect  it  from 
destruction  or  loss. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  all  persons  subject  to  military  law. 
(See  A.  W.  2.) 
It  defines  two  offenses: 

I.  Neglecting  to  secure  captured  public  property. 

II.  Wrongful  appropriation  of  captured  public  property. 

I.    NEGLECTING  TO  SECURE  CAPTURED  PUBLIC  PROPERTY. 

The  neglect  will  consist  in  a  failure  to  take  such  steps  as  a 
reasonably  prudent  man  acting  in  the  capacity  in  which  ac- 


385 


If    430  CHAPTER   XVII. 

cused  was  acting  would  have  taken  in  the  same  or  similar 
circumstances  to  secure  the  property  in  question  to  the 
service  of  the  United  States. 

PROOF. 

(a)  That  certain  public  property  was  captured  from  the 
enemy. 

(b)  That  the  functions  of  the  accused  vested  him  with  a 
certain  power  and  imposed  on  him  a  certain  duty  to  secure 
such  property  to  the  service  of  the  United  States. 

(c)  Acts  or  omissions  of  the  accused  which  evidence  a 
failure  to  take  such  steps  to  secure  the  property  to  the  serv- 
ice of  the  United  States  as  would  have  been  taken  by  a  rea- 
sonably prudent  person  acting  in  the  capacity  in  which  the 
accused  was  acting  and  in  the  same  or  similar  circumstances. 

II.    WRONGFUL    APPROPRIATION   OF    CAPTURED   PUBLIC    PROPERTY. 

Any  unauthorized  and  unjustified  act  in  disposition  of 
property  which  is  inconsistent  with  the  true  owner's  right 
of  complete  dominion  over  it  is  a  wrongful  appropriation 
of  it.  A  wrongful  appropriation  is  distinguished  from  a 
neglect  in  that  it  presumes  some  act,  while  a  neglect  may 
consist  solely  in  an  omission. 

PROOF. 

(a)  That  certain  public  property  was  captured  from  the 
enemy. 

( ~b )  Acts  of  the  accused  in  disposition  of  the  captured  public 
property,  inconsistent  with  the  United  States  right  of  com- 
plete dominion  over  that  property. 

430.  Eightieth  Article  of  War: 

Any  person  subject  to  military  law  who  buys,  sells,  trades,  or 
in  any  way  deals  in  or  disposes  of  captnred  or  abandoned  prop- 
erty, whereby  he  shall  receive  or  expect  any  profit,  benefit,  or 
advantage  to  himself  or  to  any  other  person  directly  or  indi- 
rectly connected  with  himself,  or  who  fails  whenever  such 
property  comes  into  his  possession  or  custody  or  within  his  con- 
trol to  R-ive  notice  thereof  to  the  proper  authority  and  to  turn 
over  such  property  to  the  proper  authority  without  delay,  shall, 
on  conviction  thereof,  be  punished  by  fine  or  imprisonment,  or 
by  such  other  punishment  as  a  court-martial,  military  commis- 
sion, or  other  military  tribunal  may  adjudge,  or  by  any  or  all 
of  said  penalties. 


PUNITIVE  ARTICLES   OF   WAR.  ^f    430 

DEFINITIONS  AND  PRINCIPLES. 

This  article  is  broader  than  the  preceding  one  in  the  fol- 
lowing particulars:  It  protects  abandoned  as  well  as  cap- 
tured property,  and  private  as  well  as  public  captured  or 
abandoned  property. 

Unless  the  captured  or  abandoned  property  is  private,  or 
unless  the  acts  charged  fall  within  the  descriptions  of  this 
article,  the  offense  should  be  charged  under  article  79,  supra. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  all  persons  subject  to  military  law. 
(See  A.  W.  2.) 

It  defines  a  number  of  offenses  which  may  be  treated  as 
follows : 

I.  Any  dealing  in  or  disposition  of  captured  or  abandoned 
property  whereby  the  accused  receives  or  expects  to  receive 
an  advantage. 

II.  Failure  or  delay  in  reporting  the  receipt  of  and  in  turn- 
ing over  to  proper  authority  captured  or  abandoned  prop- 
erty. 

I.    DEALING  IN  CAPTURED  OR  ABANDONED  PROPERTY. 

This  portion  of  the  article  addresses  itself  to  several  spe- 
cific acts  of  wrongful  dealings  and  looks  especially  to  cases 
where,  instead  of  appropriating  the  property  to  his  own  use 
in  kind,  the  accused  in  any  other  way  deals  with  it  to  ad- 
vantage. The  article  prohibits  receipt  as  well  as  disposition 
of  captured  or  abandoned  property  by  barter,  gift,  pledge, 
lease,  or  loan.  It  lies  against  the  destruction  or  abandon- 
ment of  such  property  if  any  of  these  acts  are  done  in  the  re- 
ceipt or  expectation  of  profit,  benefit,  or  advantage  to  the 
actor  or  to  any  other  person  directly  or  indirectly  connected 
with  himself.  The  expectation  of  profit  need  not  be  founded 
on  contract ;  it  is  enough  if  the  prohibited  act  be  done  for  the 
purpose,  or  in  the  hope,  of  benefit  or  advantage,  pecuniary  or 
otherwise. 

PROOF. 

(a)  That  the  accused  has  disposed  of,  dealt  in,  received, 
etc.,  certain  public  or  private  captured  or  abandoned  prop- 
erty. 

387 


If   431  CHAPTER  XVIL 

(b)  That  by  so  doing  the  accused  received  or  expected 
some  profit  or  advantage  to  himself  or  to  a  certain  person 
connected  in  a  certain  manner  with  himself. 

II.    FAILURE  OR  DELAY  IN  REPORTING  THE  RECEIPT  OF  CAPTURED 
OR  ABANDONED  PROPERTY, 

Proper  authority  is  any  authority  competent  to  order  the 
disposition  of  the  property  in  question,  and  the  required  re- 
port should  be  direct  or  through  such  channels  as  the  cus- 
toms and  rules  of  the  service  prescribe. 

PROOF. 

(a)  That  certain  captured  or  abandoned  property  came 
into  the  possession,  custody,  or  control  of  the  accused. 

(b)  Acts  or  omissions  of  the  accused  which  evidence  his 
failure  in  reporting  the  receipt  of,  and  in  turning  over  with- 
out delay,  such  property  to  proper  authority. 

431.  Eighty-first  Article  of  War: 

Whosoever  relieves  or  attempts  to  relieve  the  enemy  with  nrniM, 
ammunition,  supplies,  money,  or  other  thing,  or  knowingly 
harbors  or  protects  or  holds  correspondence  with  or  gives  intel- 
ligence to  the  enemy,  either  directly  or  indirectly,  shall  suffer 
death  or  such  other  punishment  us  a.  court-martial  or  military 
commission  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

"  Enemy  "  imports  enemy  citizens  as  well  as  soldiers  and 
does  not  restrict  itself  to  the  enemy  government  or  its  army. 
All  the  citizens  of  one  belligerent  are  enemies  of  the  Gov- 
ernment and  of  all  the  citizens  of  the  other. 

ANALYSIS  AND  PROOF. 

This  article  describes,  in  nearly  every  phrase,  an  overt 
act  of  treason.  The  word  whosoever,  as  it  is  here  used,  sub- 
jects to  the  jurisdiction  of  courts-martial  and  military  com- 
missions all  persons,  either  military  or  civil,  who,  in  the  the- 
ater of  operations  and  during  the  continuance  of  war,  traffic 
with  the  enemy  in  any  of  the  ways  herein  denounced. 


PUNITIVE  ARTICLES  OF   WAR.  <|j    431 

The  article  defines  five  offenses: 

I.  Relieving  the  enemy. 

II.  Attempting  to  relieve  the  enemy. 

III.  Harboring  or  protecting  the  enemy. 

IV.  Holding  correspondence  with  the  enemy. 

V.  Giving  intelligence  to  the  enemy. 

I.    BELIEVING  THE  ENEMY. 

"  Relieves,"  in  the  sense  here  used,  is  substantially  equiva- 
lent to  furnishes  or  supplies.  It  is  immaterial  whether  the 
articles  furnished  are  needed  by  the  enemy  or  whether  the 
transaction  is  a  donation  or  sale.  Knowledge  or  intent  is 
not  an  essential  in  proof  of  this  offense. 

PROGS'. 

(a)  That  the  accused  either  directly  or  indirectly  fur- 
nished the  enemy  with  a  certain  article  or  articles. 

EL  Attempting  to  Believe  the  EjLemy. 

As  to  the  meaning  of  "  attempting  "  see  paragraph  426,  supra, 
under  A.  W.  76. 

PROOF. 

That  the  accused  committed  some  act  done  with  the  purpose 
in  view  of  either  directly  or  indirectly  furnishing  the  enemy 
with  a  certain  article  or  articles,  whether  or  not  the  articles 
actually  reached  the  enemy. 

III.    HARBORING  OR  PROTECTING  THE  ENEMY. 

An  enemy  is  harbored  or  protected  when  he  is  shielded  either 
physically  or  by  use  of  any  artifice,  aid,  or  representation 
from  any  injury  or  misfortune  which  in  the  chance  of  war 
may  befall  him.  It  must  appear  that  the  offense  is  know- 
ingly committed.  But,  as  in  all  other  cases  where  knowledge 
must  be  proved,  circumstances  sufficient  to  put  a  reasonable 
man  on  notice  will  be  sufficient  to  charge  the  accused  with 
notice. 


^[    431  CHAPTER  XVII. 

PROOF. 

(a)  That   the   accused  harbored  or  protected   a  certain 
person. 

(b)  That  the  person  so  protected  was  an  enemy,  and  that 
the  accused  had  notice  or  is  chargeable  with  notice  of  this 
fact. 

IV.    HOLDING  CORRESPONDENCE  WITH  THE  ENEMY. 

Correspondence  does  not  necessarily  import  a  mutual  ex- 
change of  communication.  The  rule  requires  absolute  non- 
intercourse,  and  any  communication,  no  matter  what  may  be 
its  tenor  or  intent,  is  here  denounced.  The  prohibition  lies 
against  any  method  of  communication  whatsoever,  from  the 
winking  of  an  eye  to  the  sending  of  script,  and  the  offense 
is  complete  the  moment  the  communication  emanates  from 
the  accused  whether  it  reaches  its  destination  or  not.  The 
words  "  directly  or  indirectly  "  are  construed  as  applying  to 
this  offense,  and  they  include  within  the  prohibition  com- 
munications printed  in  newspapers  and  intended  for  the 
enemy  and  communications  conveyed  to  the  enemy  through 
friendly  or  neutral  hands.  It  is  essential  to  prove  that  the 
offense  was  knowingly  committed. 

Citizens  of  neutral  powers  resident  in  or  visiting  invaded 
or  occupied  territory  can  claim  no  immunity  from  the  cus- 
tomary laws  of  war  which  threaten  punishment  for  communi- 
cation with  the  enemy.  The  offense  of  communicating  with 
the  enemy  when  committed  by  a  resident  of  occupied  terri- 
tory constitutes  war  treason  and  is  properly  charged  under 
this  article. 

PBOOP. 

(a)  That  the  accused  uttered  a  certain  communication. 

(&)  That  the  communication  was  intended  for  a  certain 
person,  and  that  the  accused  had  notice  or  is  chargeable  with 
notice  that  this  person  was  an  enemy. 

V.    GIVING  INTELLIGENCE  TO  THE  ENEMY. 

This  is  a  particular  case  of  corresponding  with  the  enemy, 
rendered  more  heinous  by  the  fact  that  the  communication 


390 


PUNITIVE  ARTICLES  OF  WAR.  ^f    432 

contains  intelligence  that  may  be  useful  to  the  enemy  for  any 
of  the  multifarious  reasons  that  make  information  valuable 
to  belligerents.  As  in  the  preceding  case,  knowledge  must  be 
proved,  and  it  is  immaterial  to  the  issue  of  guilt  whether  the 
intelligence  was  conveyed  by  direct  or  indirect  means.  The 
word  "  intelligence  "  imports  that  the  information  conveyed 
is  true,  at  least  in  part. 

(a)  That  the  accused  knowingly  conveyed  to  the  enemy 
certain  information. 

(b)  That  the  information  was  true,  at  least  in  part. 

432.  Eighty -second  Article  of  War: 

Any  person  who  in  time  of  war  shall  be  found  lurking  or  acting  as 
a  spy  in  or  about  any  of  the  fortifications,  posts,  quarters,  or  en- 
camyments  of  any  of  the  armies  of  the  United  States,  or  elsewhere* 
shall  be  tried  by  a  general  court-martial  or  by  a  military  commis- 
sion, and  shall,  on  conviction  thereof,  suffer  death. 

DEFINITIONS  AND  PRINCIPLES. 
See  below. 

ANALYSIS  AND  PROOF. 

The  words  "  any  person  "  bring  within  the  jurisdiction  of 
courts-martial  and  military  commissions  all  persons  of  what- 
ever nationality  or  civil  status  who  may  be  accused  of  the 
offense  denounced  by  the  article. 

The  article  defines  one  crime — being  a  spy. 

I.    BEING  A  SPY. 

The  principal  characteristic  of  this  offense  is  a  clandestine 
dissimulation  of  the  true  object  sought,  which  object  is  an 
endeavor  to  obtain  information  with  the  intention  of  com- 
municating it  to  the  hostile  party. 

Thus,  soldiers  not  wearing  disguise,  dispatch  riders, 
whether  soldiers  or  civilians,  and  persons  in  aircraft  who 
carry  out  their  missions  openly  and  who  have  penetrated 
hostile  lines  are  not  to  be  considered  spies,  for  the  reason  that, 
while  they  may  have  resorted  to  concealment,  they  have  prac- 
ticed no  dissimulation. 


391 


*J  433  CHAPTER  xvn. 

It  is  necessary  to  prove  an  intent  to  communicate  informa- 
tion to  the  hostile  party.  This  intent  will  very  readily  be 
presumed  on  proof  of  a  deceptive  insinuation  of  the  accused 
among  our  forces,  but  this  presumption  may  be  rebutted  by 
very  clear  evidence  that  the  person  had  come  within  the 
lines  for  a  comparatively  innocent  purpose,  as  to  visit  his 
family  or  that  he  has  assumed  a  disguise  to  enable  him  to 
reach  his  own  lines. 

It  is  not  essential  that  the  accused  obtain  the  information 
sought  or  that  he  communicate  it.  The  offense  is  complete 
with  the  lurking  or  dissimulation  with  intent  to  accomplish 
these  objects. 

An  act  of  espionage  completed  by  the  escape  of  the  accused 
to  his  own  lines  can  not  be  the  subject  of  trial  if  the  quondam 
spy  is  later  captured. 

A  person  living  in  occupied  territory  who,  without  dis- 
simulation, merely  reports  what  he  sees  or  what  he  hears 
through  agents  to  the  enemy  may  be  charged  under  the  pre- 
ceding article  with  communicating  or  giving  intelligence  to 
the  enemy,  but  he  may  not  be  charged  under  this  article  with 
being  a  spy. 

PROOF. 

(a)  That  the  accused  was  found  at  a  certain  place  within 
our  lines,  acting  clandestinely,  or  under  false  pretenses. 

(£>)  That  ho  was  obtaining,  or  endeavoring  to  obtain,  in- 
formation with  intent  to  communicate  the  same  to  the  enemy. 

SECTION  VI. 
MISCELLANEOUS  CRIMES  AND  OFFENSES. 

433.  Eighty-third  Article  of  War: 

Any  person  subject  to  military  law  rvko  willfully,  or  through 
neglect,  suffers  to  be  lost,  spoiled,  damaged,  or  wrongfully  disposed 
of,  any  military  property  belonging  to  the  United  Stnte*  shall  make 
good  the  IO*A  or  damage  find  suffer  such  punishment  as  a  court- 
martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  loss,  etc.,  may  be  said  to  be  willfully  suffered  when  the 
accused  knowing  the  loss,  etc.,  to  be  imminent  or  actually  go- 


892 


PUNITIVE   ARTICLES   OF   WAR.  ^J    433 

ing  on,  takes  no  steps  to  prevent  it,  as  where  a  sentinel  seeing 
a  small  and  readily  extinguishable  fire  in  a  stack  of  hay  on 
his  post  allows  it  to  burn  up.  A  suffering  through  neglect 
implies  an  omission  to  take  such  measures  as  were  appropriate 
under  the  circumstances  to  prevent  a  probable  loss,  dam- 
age, etc. 

The  willful  or  neglectful  sufferance  specified  by  the  article 
may  consist  in  a  deliberate  violation  or  positive  disregard  of 
some  specific  injunction  of  law,  regulations,  or  orders ;  or  it 
may  be  evidenced  by  such  circumstances  as  a  reckless  or  un- 
warranted personal  use  of  the  property ;  causing  or  allowing 
it  to  remain  exposed  to  the  weather,  insecurely  housed  or  not 
guarded;  permitting  it  to  be  consumed,  wasted,  or  injured 
by  other  persons;  loaning  it  to  an  irresponsible  person  by 
whom  it  is  damaged,  etc.  (Winthrop,  p.  862,) 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  one  subject  to  military  law.  See 
article  2. 

The  article  embraces  eight  off enses,  indicated  by  the  follow- 
ing diagram : 


Any  person 
subject 
military 


^Willfully 


or  >  Suffers  to  be 


[Lost, 
Spoiled, 
Damaged, 


Through  neglect 
law  who   J  J 


or 


Wrongfully 
disposed  of 


Any  mili- 
tary prop- 
erty be- 
longing to 
the  United 
States. 


These  offenses  may  be  briefly  treated  under  the  heading 
"  Suffering  military  property  to  be  lost,  etc." 

I.    SUFFERING  MILITARY  PROPERTY  TO  BE  LOST,  ETC. 
PEOOF. 

(a)  That  certain  military  property  was  lost,  spoiled,  dam- 
aged, or  wrongfully  disposed  of  in  the  manner  alleged. 

(b)  That  such  loss,  spoiling,  damage,  or  wrongful  dispo- 
sition was  suffered  by  the  accused  through  a  certain  omis- 
sion of  duty  on  his  part. 


II  434 


CHAPTER   XVII. 


(c)  That  such  omission  was  willful,  or  negligent,  as  al- 
leged. 

(d)  The  value  of  the  property,  as  alleged. 

434.  Eighty-fourth  Article  of  War: 

Any  Holdier  who  sells  or  wrongfully  disposes  of  or  willfully  or 
through  neglect  injures  or  loses  any  horse,  arms,  ammunition,  ac- 
coutennents,  equipment,  clothing,  or  other  property  issued  for  use 
in  the  military  service  shall  be  punished  as  a  court-martial  may 
direct. 

DEFINITIONS  AND  PRINCIPLES. 

See  definitions  under  A.  W.  80,  paragraph  430,  supra. 

Accouterments  applies  in  the  military  sense  to  those  parts 
of  the  soldier's  equipment  which  are  issued  by  the  Ordnance 
Department  *  *  *  in  connection  with  his  arms  and  am- 
munition, such,  for  example,  as  belts  and  cartridge  pouches. 
(Digest,  p.  1084.) 

Clothing  includes  all  articles  of  clothing  whether  issued 
under  a  clothing  allowance  or  otherwise,  for  example,  over- 
coats and  sweaters  as  now  issued  are  articles  of  clothing. 

D 

That  the  property  sold,  disposed  of,  lost,  or  injured  was 
issued  to  someone  other  than  the  accused  is  immaterial ;  the 
article  applies  to  any  property  issued  for  use  in  the  military 
service. 

ANALYSIS  AND  PROOF. 


This  article  applies  to  enlisted  men  only. 
The  article  defines  a  number  of  offenses,  indicated  by  the 
following  diagram: 


Any  soldier 
who 


Sells 

or 
Wrongfully  disposes  of 

or 

Willfully 

fin lures 
or 

Through 
neglect 


I  Loses 


Horse, 

Arms, 

Ammunition, 

Issued    for 

Accouterrnents, 

use  in  the 

Any 

Equipment, 

milita  ry 

Clothing, 

service. 

or 

other  property 

394 


PUNITIVE   AKTICLES   OF   WAR.  If    434 

These  offenses  may  be  treated  under  the  following  heads : 

I.  Selling  or  wrongfully  disposing  of  military  property. 

II.  Willfully  or  through  neglect  injuring  or  losing  military 
property. 

I.  SELLING  OR   WRONGFULLY  DISPOSING  OF   MILITARY  PROPERTY. 

See  matter  under  A.  W.  80,  Item  I. 

PEOOF. 

(a)  That  the  accused  soldier  sold  or  otherwise  disposed  of 
certain  property  in  the  manner  alleged. 

(b)  That  such  disposition  was  wrongful. 

(c)  That  the  property  was  issued  for  use  in  the  military 
service. 

(d)  The  value  of  the  property  as  alleged. 

II.  WILLFULLY  OR  THROUGH  NEGLECT  INJURING  OR  LOSING  MILI- 

TARY PROPERTY. 

A  willful  injury  or  loss  is  one  that  is  intentionally  occa- 
sioned. A  loss  or  injury  is  occasioned  through  neglect  when 
it  is  the  result  of  a  want  of  such  attention  to  the  nature  or 
probable  consequences  of  an  act  or  omission  as  was  appro- 
priate under  the  circumstances. 

PROOF. 

(a)  That  certain  property  was  injured  in  a  certain  way  or 
lost,  as  alleged. 

(b)  That  such  property  was  issued  for  use  in  the  military 
service. 

(<?)  That  such  injury  or  loss  was  willfully  caused  by  the 
accused  in  a  certain  manner,  as  alleged;  or  that  such  injury 
or  loss  was  the  result  of  certain  neglect  on  the  part  of  the  ac- 
cused. 

(d)  The  value  of  the  property,  as  alleged. 


395 


If    435  CHAPTER    XVII. 

435.  Eighty-fifth  Article  of  War: 

Any  officer  who  Is  found  drunk  on  duty  shall,  If  the  offense  be  o-'>m- 
mitted  in  time  of  war,  be  dismissed  from  the  service  and  suffer  such 
other  punishment  a«  a  court-martial  may  directs  and  if  the  offense 
he  committed  in  time  of  pesce,  he  Khali  be  punished  an  a  court- 
martial  may  direct.  Any  person  subject  to  military  law,  except  an 
officer,  who  is  found  drunk  on  duty  shall  be  punished  as  a  eauvt- 
uiurtial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

The  article  does  not  require  that  the  accused  shall  have 
become  drunk,  but  that  he  shall  have  been  found,  i.  e.,  dis- 
covered or  perceived,  to  be  drunk,  when  on  duty,  and  it  does 
not  therefore  necessarily  follow  that  his  drunkenness  shall 
have  commenced  after  the  duty  has  been  entered  upon.  To 
permit  an  officer  or  soldier,  when  inebriated,  to  go  upon  any 
duty  of  importance,  while  in  general  involving  an  injustice 
to  the  individual,  is  also  a  reprehensible  act  and  a  military 
offense  in  the  superior  who  knowingly  suffers  it.  But  the 
fact  that  he  was  already  intoxicated  can  not  render  the 
party  himself  any  the  less  legally  liable  under  the  article,  if, 
after  having  entered  upon  the  duty,  his  intoxication  con- 
tinues and  his  condition  is  detected.  But,  on  the  other  hand, 
a  soldier  (or  officer)  is  not  "found"  drunk  in  the  sense  of 
the  article,  if  he  is  simply  discovered  to  be  drunk  when  or- 
dered, or  otherwise  required,  to  go  upon  the  duty,  upon  which, 
because  of  his  condition,  he  does  not  enter  at  all.  (Winthrop, 
pp.  944,  945.) 

Whether  the  drunkenness  was  caused  by  liquor  or  drugs 
is  immaterial,  but  where  the  sole  cause  was  a  liquor  or  drug 
duly  prescribed  by  a  medical  officer  of  the  Army  or  a  civil 
physician  and  taken  in  good  faith  according  to  the  prescrip- 
tion no  offense  is  committed. 

The  fact  that  the  accused,  owing  to  an  unsuspected  sus- 
ceptibility, permanent  or  temporary,  was  made  drunk  by  in- 
dulging in  a  very  small  amount  of  intoxicant  is  not  a  defense. 

Any  intoxication  which  is  sufficient  to  sensibly  impair  the 
rational  and  full  exercise  of  the  mental  and  physical  faculties 
is  drunkenness  within  the  meaning  of  the  article.  (Digest, 
p.  540.) 


S96 


PUNITIVE   ARTICLES   OF   WAR.  <[[    485 

Where  the  accused  is  charged  under  this  article,  a  convic- 
tion under  the  general  article  of  l>eing  under  the  influence  of 
liquor  is  wholly  inconsistent  if  he  was  found  in  such  condi- 
tion while  on  duty.  The  article  requires  no  particular  degree 
of  drunkenness,  and  if  the  accused  was  found  so  far  under 
the  influence  of  liquor  as  to  be  punishable  at  all  he  was 
found  drunk  on  duty  within  the  meaning  of  this  article. 

The  term  "  duty  "  as  used  in  this  article,  means  of  course 
military  duty.  But — it  is  important  to  note — every  duty 
which  an  officer  or  soldier  is  legally  required,  by  superior 
military  authority,  to  execute,  and  for  the  proper  execution 
of  which  he  is  answerable  to  such  authority,  is  necessarily 
a  military  duty.  (Winthrop,  p.  949.) 

The  words  "  on  duty,"  as  used  in  this  article,  have  also  re- 
ceived an  authoritative  interpretation.  As  applied  to  the 
commanding  officer  of  a  post,  or  of  an  organization,  or  de- 
tachment in  the  field,  the  senior  officer  present,  in  the  actual 
exercise  of  command,  is  constantly  on  duty;  the  term  being 
here  used  in  contradistinction  to  "  on  leave."  In  the  case  of 
other  officers,  or  of  enlisted  men.  the  term  "  on  duty  "  has 
been  held  to  relate  to  the  performance  of  duties  of  routine  or 
detail,  in  garrison  or  in  the  field ;  the  words  "  off  duty,"  in 
respect  to  such  persons,  relating  to  such  periods  or  occasions 
when,  no  duty  being  required  of  them  by  orders  or  regula- 
tions, officers  and  men  are  said  to  occupy  that  status  of  leis- 
ure known  to  the  service  as  being  u  off  duty."  (Davis, 
p.  408.) 

In  time  of  war  and  in  a  region  of  active  hostilities  the  cir- 
cumstances are  often  such  that  all  members  of  a  command 
may  properly  be  considered  as  being  continuously  on  duty 
within  the  meaning  of  this  article. 

A  medical  officer  of  a  post,  where  there  are  constantly  sick 
persons  under  his  charge  who  may  at  any  moment  require 
his  attendance,  may,  generally  speaking,  be  deemed  to  be 
"  on  duty  "  in  the  sense  of  the  article  during  the  whole  day 
and  not  merely  during  the  hours  regularly  occupied  by  sick 
call,  visiting  the  sick,  or  attending  hospital.  If  found  drunk 
at  any  other  hour  he  may  in  general  be  charged  with  an 
offense  under  this  article.  (Digest,  p.  127.) 


397 


T|    436  CHAPTER  XVII. 

So,  also,  an  officer  of  the  day  and  members  of  the  guard  are 
on  duty  during  their  entire  tour  within  the  meaning  of  this 
article,  but  a  sentinel  found  drunk  on  post  is  chargeable  under 
the  next  succeeding  article.  The  article  also  applies  to  cases 
where  the  duty  being  performed  is  merely  a  preliminary  one, 
such  as  a  reporting  for  inspection  by  a  soldier  designated  for 
guard  or  a  reporting  under  orders  for  duty  at  a  post  to  the 
commanding  officer. 

The  offense  of  a  person  who  absents  himself  from  his  duty 
and  is  found  drunk  while  so  absent,  or  who  is  relieved  from 
duty  at  a  post  and  ordered  to  remain  there  to  await  orders, 
and  is  found  drunk  during  such  status,  is  not  chargeable  un- 
der this  article. 

ANALYSIS  AND  PROOF. 

This  article  applies  to  any  person  subject  to  military  law. 
See  article  2. 

The  article  defines  one  offense,  namely,  being  found  drunk 
on  duty. 

I.    BEING  FOUND  DRUNK  ON  DUTY. 


PROOF. 

(a)  That  the  accused  was  on  a  certain  duty,  as  alleged. 

(b)  That  he  was  found  drunk  while  on  such  duty. 

436.  Eighty -sixth  Article  of  War: 

Any  sentinel  who  is  found  drunk  or  sleeping  upon  his  post,  or 
who  leaves  it  before  he  is  regularly  relieved,  shall,  if  the  offense  be 
committed  in  time  of  war,  suffer  death  or  such  other  punishment  as  a 
court-martial  may  direct;  and  if  the  offense  be  committed  in  time  of 
peace,  he  shall  suffer  any  punishment,  except  death,  that  a  court- 
martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

As  to  drunkenness,  see  matter  under  eighty-fifth  article, 
supra. 

The  term  "  sentinel "  does  not  include  a  watchman. 


PUNITIVE  ARTICLES  OF  WAR.  ^f    436 

A  sentinel  is  on  post  within  the  meaning  of  this  article  not 
only  when  he  is  walking  a  duly  designated  sentinel's  post,  as 
is  ordinarily  the  case  in  garrison,  but  also  "  when  he  may  be 
stationed  in  observation  against  the  approach  of  an  enemy, 
or  on  post  to  maintain  internal  discipline,  or  to  guard  stores, 
or  to  guard  prisoners  while  in  confinement  or  at  work."  (Di- 
gest, p.  128.) 

A  sentinel's  post  is  not  limited  to  an  imaginary  line,  but  in- 
cludes, according  to  orders  or  circumstances,  such  contiguous 
area  within  which  he  may  walk  as  may  be  necessary  for  the 
protection  of  property  committed  to  Ms  charge  or  for  the  dis- 
charge of  such  other  duties  as  may  be  required  by  general  or 
special  orders.  The  sentinel  who  goes  anywhere  within  such 
area  for  the  discharge  of  his  duties  does  not  leave  his  post,  but  if 
found  drunk  or  sleeping  within  such  area  he  may  be  convicted 
of  a  violation  of  this  article. 

The  fact  that  the  sentinel  was  not  posted  in  the  regular 
way  is  not  a  defense. 

ANALYSIS  AND  PROOF. 

The  article  applies  only  to  sentinels. 
The  article  defines  three  offenses,  namely : 

I.  Being  found  drunk  on  post. 

II.  Being  found  sleeping  on  post. 

III.  Leaving  post  before  being  relieved. 

I.   BEING  FOUND  DRUNK  ON  POST. 

As  to  drunkenness,  see  matter  under  eighty-fifth  article, 
paragraph  435,  supra. 

PBOOF. 

(a)  That  the  accused  soldier  was  posted  as  a  sentinel  on  a 
certain  post,  as  alleged. 

(Z>)  That  he  was  found  drunk  while  on  such  post. 

II.   BEING  FOUND  SLEEPING  ON  POST. 

The  fact  that  the  accused  had  been  previously  overtaxed 
by  excessive  guard  duty  is  not  a  defense,  although  evidence 
to  that  effect  may  be  received  in  extenuation  of  the  offense. 
21358°— 20 26 


If  437  CHAPTER  xvn. 

PBOOF. 

(a)  That  the  accused  soldier  was  posted  as  a  sentinel  on  a 
certain  post,  as  alleged. 

( b)  That  he  was  found  sleeping  while  on  such  post. 

m.    LEAVING  POST  BEFORE  BEING  RELIEVED. 

The  offense  of  leaving  post  is  not  committed  when  a  sentinel 
goes  an  immaterial  distance  from  the  point,  path,  area,  or 
object  which  was  prescribed  as  his  post. 

PBOOF. 

(a)  That  the  accused  soldier  was  posted  as  a  sentinel  on 
a  certain  post,  as  alleged. 

(b)  That  he  left  such  post  without  being  regularly  re- 
lieved. 

437.  Eighty-seventh  Article  of  War: 

Any  officer  commanding:  in  any  garrison,  fort,  barracks,  camp,  or 
other  place  where  troops  of  the  United  States  may  be  serving;  who, 
for  his  private  advantage,  lays  any  duty  or  imposition  upon  or  Is 
interested  in  the  sale  of  any  victuals  or  other  necessaries  of  life 
brought  into  such  garrison,  fort,  barracks,  camp,  or  other  place  for 
the  use  of  the  troops,  shall  be  dismissed  from  the  service  and 
suffer  such  other  punishment  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 
See  the  terms  of  the  article. 

ANALYSIS  OF  PROOF. 

This  article  applies  to  commanding  officers  only. 
The  article  defines  offenses  which  may  be  treated  under  two 
heads,  as  follows: 

I.  Laying  a  duty  or  imposition  upon  the  bringing  in  of 
victuals,  etc. 

II.  Being  interested  in  the  sale  of  victuals,  etc. 


400 


PUNITIVE  ARTICLES  OF  WAR.  ^f    437 

I.    LAYING  A    DUTY    OR   IMPOSITION   UPON   THE   BRINGING   IN    OF 
VICTUALS,  ETC. 

A  commanding  officer  who  should  prohibit  the  entry  into 
his  camp  of  peddlers  of  vegetables  for  the  troops,  permitting 
it  only  if  the  peddlers  pay  him  for  the  privilege,  would  be 
guilty  of  this  offense  whether  any  money  was  actually  paid 
or  not. 

PROOF. 

(a)  That  the  accused  officer  was  in  command  of  a  certain 
place  where  troops  of  the  United  States  were  serving,  as 
alleged. 

(b)  That  he  laid  a  certain  duty  or  imposition  upon  the 
bringing  into  such  command  of  victuals  or  other  necessaries 
of  life  for  the  use  of  such  troops,  as  alleged. 

(c)  That  such  duty  or  imposition  was  laid  for  his  own 
private  advantage. 

II.    BEING  INTERESTED  IN  THE  SALE  OF  VICTUALS,  ETC. 

The  interest  need  not  be  a  direct  interest,  such  as  that 
attaching  to  a  partnership,  or  part  ownership,  of  the  articles 
introduced  for  sale,  but  may  be  one  of  an  indirect  or  contin- 
gent character,  as  for  instance,  an  interest  arising  from  an 
agreement  or  mutual  understanding  between  the  officer  and 
the  owner  of  the  supplies  that  the  former  shall  receive  a  per- 
centage on  the  sales,  or  a  commission  on  all  profits  above  a 
certain  sum,  or  some  present  of  money  or  goods  in  return  for 
his  sanction  of  the  speculation  or  promotion  of  the  business. 
(Winthrop,  p.  870.) 

Thus  a  commanding  officer  commits  this  offense  when  he 
agrees  with  a  peddler  to  exclude  others  in  consideration  of 
some  advantage  to  himself. 

A  commanding  officer  might  become  interested  in  the  sale 
of  articles  by  the  post  exchange  within  the  meaning  of  this 
article. 

PROOF. 

(a)  That  the  accused  officer  was  in  command  of  a  certain 
place  where  troops  of  the  United  States  were  serving,  as 
alleged. 

401 


If   438  CHAPTER  XVII. 

(b)  That  he  became  pecuniarily  interested  in  a  certain  way 
in  the  sale  of  certain  victuals  or  other  necessaries  of  life  to 
such  troops,  as  alleged. 

(c)  The  he  so  became  interested  for  his  own  private 
advantage. 

438.  Eighty-eighth  Article  of  War: 

Any  person  subject  to  military  law  who  abuses,  intimidates,  does 
violence  to,  or  wrongfully  interferes  with  any  person  bringing  pro- 
visions, supplies,  or  other  necessaries  to  the  camp,  garrison,  or  quar- 
ters of  the  forces  of  the  United  States  shall  suffler  such  punishment 
as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

See  the  terms  of  the  article. 

This  article  in  no  way  interferes  with  the  lawful  powers  of 
a  military  commander  to  exclude  persons  or  supplies  inimi- 
cal to  health  or  good  order  of  his  command.  The  purpose  of 
this  article  is  to  prevent  the  diminishing  or  cutting  off  of  the 
supply  of  necessaries  brought  in  by  private  persons  through 
any  abuse,  intimidation,  doing  violence  to,  or  wrongfully  in- 
terfering with  such  persons.  The  prohibition  against  inter- 
ference, etc.,  therefore,  applies  not  only  while  such  persons 
are  coming  to  the  camp,  etc.,  but  also  while  they  remain  and 
during  their  return  therefrom. 

The  wrongful  interference  contemplated  would  include  not 
only  any  wrongful  act  not  included  in  the  terms  "  abuse,  etc.," 
which  prevents,  obstructs,  or  delays  the  movements  of  the  per- 
son, but  any  wrongful  interference  with  the  supplies  them- 
selves, such  as  stealing  or  destroying  them. 

ANALYSIS  AND  PROOF. 

This  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  a  number  of  offenses  which  may  be  briefly 
treated  under  one  head,  as  follows : 

I.   INTIMIDATING,  DOING  VIOLENCE   TO,  OR  WRONGFULLY  INTER- 
FERING  WITH   PERSONS   BRINGING    NECESSARIES. 

PROOF. 

(a)  That  a  certain  person  named  or  described  was  bring- 
ing provisions,  supplies,  or  other  necessaries  to  a  certain 

402 


PUNITIVE  AKTICLES  OF  WAK.  ^f   439 

camp,  garrison,  or  quarters  of  the  forces  of  the  United  States, 
as  alleged. 

(b)  That  the  accused  abused,  intimidated,  did  violence  to, 
or  wrongfully  interfered  with  such  person  while  so  engaged 
and  in  the  manner  alleged. 

439.  Eighty-ninth  Article  of  War: 

All  persons  subject  to  military  law  are  to  behave  themselves  or- 
derly in  quarters,  garrison,  camp,  and  on  the  march;  and  any  person 
subject  to  military  law  who  commits  any  waste  or  spoil,  or  willfully 
destroys  any  property  whatsoever  (unless  by  order  of  his  commanding 
officer),  or  commits  any  kind  of  depredation  or  riot  shall  be  pun- 
ished as  a  court-martial  may  direct.  Any  commanding  officer  who, 
upon  complaint  made  to  him,  refuses  or  omits  to  see  reparation  made 
to  the  party  injured,  in  so  far  as  the  offender's  pay  shall  go*  toward 
such  reparation,  as  provided  for  in  article  one  hundred  and  flve,  shall 
be  dismissed  from  the  service,  or  otherwise  punished,  as  a  court- 
martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

See  the  terms  of  the  article  and  the  definitions  under  the 
respective  offenses  as  given  below. 

ANALYSIS  AND  PROOF. 

This  article  divides  itself  into  two  parts,  one  embracing  all 
persons  subject  to  military  law,  and  the  other  commanding 
officers  only. 

The  article  defines  a  number  of  offenses  which  may  be 
briefly  treated  under  the  following  headings : 

I.  Committing  any  waste  or  spoil. 

II.  Willfully  destroying  property. 

III.  Committing  depredation  or  riot. 

IV.  Refusing  or  omitting  to  see  reparation  made. 

I.    COMMITTING  ANY  WASTE  OR  SPOIL. 

The  terms  "  waste  "  or  "  spoil "  as  used  in  this  article  re- 
fer to  such  acts  of  voluntary  destruction  of  or  permanent 
damage  to  real  property  as  burning  down  buildings,  tearing 
down  fences,  cutting  down  shade  or  fruit  trees,  and  the  like. 


If    439  CHAPTER  XVII. 

PROOF. 

(a)  That  the  accused  being  with  a  certain  command  in 
quarters,  camp,  garrison,  or  on  the  march,  committed  waste 
or  spoil  on  certain  property  in  the  manner  alleged. 

(b)  That  such  acts  were  not  ordered  by  his  commanding 
officer. 

II.    WILLFULLY  DESTROYING  PROPERTY. 

To  be  destroyed  it  is  not  necessary  that  the  property  be 
completely  demolished  or  annihilated.  It  is  sufficient  if  it  is 
so  far  injured  as  to  be  useless  for  the  purpose  for  which  it  was 
intended. 

PBOOF. 

(a)  That  the  accused  being  with  a  certain  command  in 
quarters,  camp,  garrison,  or  on  the  march,  destroyed  cer- 
tain property,  as  alleged. 

(b)  That   such   destruction   was  willful    and    was    not 
ordered  by  his  commanding  officer. 

III.    COMMITTING  DEPREDATION  OR  RIOT. 

The  term  "  any  kind  of  depredation  "  includes  plundering, 
pillaging,  robbing,  and  any  other  willful  damage  to  property 
not  included  in  the  preceding  specific  terms  of  the  article. 

A  riot  is  a  tumultuous  disturbance  of  the  peace  by  three  or 
more  persons  assembled  together  of  their  own  authority,  with 
the  intent  mutually  to  assist  one  another  against  anyone  who 
shall  oppose  them  in  the  execution  of  some  enterprise  of  a 
private  nature,  and  who  afterwards  actually  execute  the  same 
in  a  violent  and  turbulent  manner,  to  the  terror  of  the  people, 
whether  the  act  intended  was  of  itself  lawful  or  unlawful, 
(McClain,  Grim.  Law,  sec.  992.) 

PBOOF. 

(a)  That  the  accused  being  with  a  certain  command  in 
quarters,  camp,  garrison,  or  on  the  march,  committed  certain 
acts  of  depredation  on  certain  property,  or  certain  acts  of 
rioting,  as  alleged. 

404 


PUNITIVE  ARTICLES  OF  WAR.  ^f    440 

IV.   REFUSING  OR  OMITTING  TO  SEE  REPARATION  MADE. 

Refusing  to  entertain  a  proper  complaint  at  all ;  refusing 
or  omitting  to  convene  a  board  for  the  assessment  of  damage ; 
or  to  act  on  such  proceedings,  or  to  direct  the  proper  stop- 
pages, are  instances  of  this  offense. 

PROOF. 

(a)  That  the  accused  was  the  commanding  officer  of  a  cer- 
tain command  in  quarters,  garrison,  camp,  or  on  the  march, 
as  alleged. 

(6)  That  a  complaint  was  duly  made  to  him  by  a  certain 
person  of  damage  to  or  loss  of  certain  property  occasioned  by 
troops  of  the  accused's  command,  as  alleged. 

(c)  That  the  accused  either  refused  to  see  reparation  made 
or  omitted  in  the  manner  alleged  to  see  reparation  made  to 
the  party  injured  in  so  far  as  the  offender's  pay  would  go 
toward  such  reparation. 

440.  Ninetieth  Article  of  War: 

No  person  (subject  to  military  law  shall  use  any  reproachful 
or  provoking1  speeches  or  prestures  to  another;  and  any  person 
subject  to  military  law  who  offends  against  the  provisions  of 
this  article  shall  he  pnnished  as  a  court-martial  may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

See  the  terms  of  the  article. 

The  article  is  intended  to  prevent  what  frequently  are  the 
first  steps  toward  quarrels,  fights,  or  serious  offenses. 

Reproachful  speeches  and  gestures  are  such  as  involve  cen- 
sorious comment  on  the  actions  or  opinions  of  another.  Pro- 
voking speeches  and  gestures  are  such  as  tend  to  exasperate 
or  to  arouse  anger  and  resentment. 

ANALYSIS  AND  PROOF. 

This  article  applies  to  any  person  subject  to  military  law. 
The  article  defines  offenses  which  may  be  treated  under  one 
heading,  as  follows : 

I.    USING  PROVOKING  SPEECHES  OR  GESTURES. 

PBOOF. 

(a)  That  the  accused  used  certain  speeches  or  gestures  to 
a  certain  person,  as  alleged. 

405 


^f    441  CHAPTER  XVII. 

(&)  That  the  speeches  or  gestures  were  reproachful  or  pro- 
voking. 

(c)  That  the  person  to  whom  such  speeches  or  gestures 
were  addressed  is  in  one  of  the  classes  of  persons  subject  to 
military  law. 

441.  Ninety-first  Article  of  War: 

Any  person  subject  to  military  law  vrlio  fights  or  promotes  or 
is  concerned  in  or  connives  at  fighting?  a  duel,  or  who  having; 
knowledge  of  a  challenge  sent  or  about  to  be  sent  fails  to  report 
the  fact  promptly  to  the  proper  authority  shall,  if  an  officer,  be 
dismissed  from  the  service  or  suffer  such  other  punishment  as  a 
court-martial  may  direct;  and  if  any  other -person  subject  to 
military  lair,  shall  suffer  such  punishment  as  a  court-martial 
may  direct. 

DEFINITIONS  AND  PRINCIPLES. 

See  the  terms  of  the  article. 

A  duel  is  a  concerted  fight  between  two  persons  with 
deadly  weapons,  the  object  of  which  is  claimed  to  be  the  sat- 
isfaction of  wounded  honor.  (Wharton,  vol.  2,  p.  2283.) 

NOTE. — The  offenses  made  punishable  by  this  article  are  of  such  in- 
frequent occurrence  that  it  is  considered  inadvisable  to  comment  more 
fully  upon  them.  In  a  case  of  doubt,  works  on  military  law  should 
be  consulted. 

ANALYSIS  AND  PROOF. 

This  article  applies  to  any  person  subject  to  military  law. 
The  article  embraces  a  number  of  offenses  which  may  be 
briefly  treated  under  the  following  headings : 
I.  Fighting  or  promoting  a  duel. 
IT.  Being  concerned  in  or  conniving  at  fighting  a  duel. 
III.  Failing  to  report  knowledge  of  a  challenge. 

I.   FIGHTING  OR  PROMOTING  A  DUEL. 

Fighting  or  promoting  a  duel  would  include  such  acts  as 
the  sending,  giving,  or  accepting  a  challenge,  or  the  carrying 
of  a  challenge  or  acceptance,  the  arrangement  of  the  pre- 
liminaries, and,  in  general,  any  act  by  which  a  duel  is  inten- 
tionally furthered,  encouraged,  or  incited,  whether  the  duel 
takes  place  or  not. 

406 


PUNITIVE  AKTICLES   OF  WAR.  ^f    442 

PROOF. 

(a)  That  the  accused  fought  a  duel  with  a  certain  person 
as  alleged,  or  that  he  promoted  a  duel  between  certain  per- 
sons in  the  manner  alleged. 

II.   BEING  CONCERNED  IN  OR  CONNIVING  AT  FIGHTING  A  DUEL. 

Being  concerned  in  or  conniving  at  fighting  a  duel  would 
include  the  being  present  thereat  in  some  capacity  other  than 
a  principal,  as  in  the  case  of  seconds  and  doctors. 

PROOF. 

(a)  That  the  accused  was  concerned  in  or  connived  at 
fighting  a  certain  duel  in  the  manner  alleged. 

III.    FAILING  TO  REPORT  KNOWLEDGE  OF  A  CHALLENGE. 

A  challenge  is  a  written  or  verbal  demand,  request,  or  in- 
vitation to  another  to  fight  a  duel. 

To  constitute  a  challenge  no  particular  form  is  necessary. 
It  is  enough  if  what  was  sent  or  about  to  be  sent,  considered 
in  connection  with  the  circumstances,  amounts  to  such  a  de- 
mand, request,  or  invitation.  However,  an  effort  to  provoke 
a  challenge  or  an  announcement  of  a  willingness  to  accept 
one  is  not  a  challenge. 

As  to  knowledge,  see  matter  under  fifty-fifth  article. 

PROOF. 

(a)  That  the  accused  knew  that  a  certain  challenge  had 
been  sent,  or  was  about  to  be  sent,  as  alleged. 

(5)  That  he  either  did  not  report  the  fact  to  the  proper 
authority  at  all,  or  that  he  unnecessarily  delayed  making  such 
report,  as  alleged. 

442.  Ninety-second  Article  of  War: 

Any  person  subject  to  military  law  who  commits  murder  or 
rape  shall  suffer  death  or  imprisonment  for  life,  as  a  court- 
martial  may  direct;  but  no  person  shall  be  tried  by  court- 
martial  for  murder  or  rape  committed  within  the  geographical 
limits  of  the  States  of  the  Union  and  the  District  of  Columbia 
in  time  of  peace. 

407 


Tf    442  CHAPTEK  XVII, 

DEFINITIONS  AND  PRINCIPLES. 

The  crimes  and  offenses  of  which  courts-martial  are  given 
jurisdiction  by  the  ninety-second  and  ninety-third  articles  of 
war,  and  by  the  phrase  "  and  all  crimes  or  offenses  not  capital " 
in  the  ninety-sixth  article,  are  the  same  "  offenses  of  a  civil 
nature  "  mentioned  in  the  forty-second  article  of  war.  Their 
definition  is,  therefore,  to  be  sought,  as  the  forty-second  article 
prescribes,  (1)  in  the  "statutes  of  the  United  States  of  general 
application  within  the  continental  United  States,  excepting  sec- 
tion 289,  Penal  Code  of  the  United  States,  1910;"  and  (2) 
where  not  defined  in  such  statutes  then  "  in  the  law  of  the 
District  of  Columbia,"  i.  e.,  if  defined  by  a  statute  in  force  in 
the  District  of  Columbia,  e.  g.,  the  Code  of  the  District  of  Colum- 
bia, then  in  that  statute,  otherwise  in  the  common  law  as  in 
force  and  recognized  in  the  District  of  Columbia.  Where  an 
offense  is  defined  by  the  Federal  Penal  Code  or  other  statute  of 
general  application  throughout  the  continental  United  States, 
such  definition  will  govern  courts-martial  and  military  tribunals, 
although  there  may  be  a  different  definition  in  the  Code  of  the 
District  of  Columbia;  the  principle  being  that,  wherever  the 
general  statutes  conflict  with  any  statute  ef  the  District  of 
Columbia,  the  latter  must  give  way,  since  resort  is  to  be  had 
to  the  law  of  the  District  of  Columbia  only  where  the  general 
Federal  statutes  are  silent. 

ANAL*  sis  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 
See  articles. 
The  article  defines  two  offenses,  as  follows : 

I.  Murder. 

II.  Rape. 

I.    MURDER. 

Murder  is  the  unlawful  killing  of  a  human  being  with 
malice  aforethought.  (Federal  Penal  Code,  1910,  sec.  273.) 

"  Unlawfully  "  as  used  in  the  definition  of  murder  means 
without  legal  justification  or  excuse. 

A  homicide  done  in  the  proper  performance  of  a  legal  duty 
is  justifiable.  Thus,  executing  a  person  pursuant  to  a  sen- 

408 


PUNITIVE  ABTICLES  OF  WAE.  ^f    442 

tence  of  death ;  killing  in  suppressing  a  mutiny  or  in  prevent- 
ing the  escape  of  a  prisoner  where  no  other  available  means 
are  adequate;  killing  an  enemy  in  battle;  and  killing  to  pre- 
vent the  commission  of  a  felony  attempted  by  force  or  sur- 
prise, such  as  murder,  burglary,  or  arson,  are  cases  of  justifi- 
able homicide. 

The  right  and  duty  of  a  sentinel  over  a  prisoner  in  his 
charge  in  case  of  attempted  escape  is  discussed  in  the  Manual 
of  Interior  Guard  Duty,  1914. 

This  right  and  duty  extends  to  other  members  of  the  guard 
whose  duties  include  the  safe-keeping  of  such  prisoner.  (Di- 
gest, p.  583.) 

The  same  principles  apply  to  the  arrest  of  a  soldier  by  offi- 
cers or  soldiers  authorized  to  make  the  particular  arrest. 

A  party  of  soldiers  left  their  camp  at  night  in  time  of  war 
without  leave  contrary  to  positive  orders  and  proceeded  to  a 
neighboring  town,  where  they  created  a  disturbance.  Their 
commanding  officer  followed  them,  found  them  in  a  saloon, 
and  was  about  to  arrest  them,  when  they  broke  from  him,  and 
knowing  who  he  was  disregarded  his  order  to  halt  and  ran 
away  from  him.  He  repeated  his  order,  and  not  being  obeyed 
and  having  no  other  means  of  detaining  them,  fired  upon 
them  while  fleeing  with  a  pistol,  and  shot  and  killed  one 
of  them.  Held)  that  he  did  nx)t  use  undue  force  in  endeavor- 
ing to  maintain  discipline  and  to  arrest  the  offenders  whom 
he  was  endeavoring  to  return  to  their  stations,  and  that  he 
was  not  guilty  of  an  offense  requiring  punishment,  and  that 
his  conduct  under  the  circumstances  in  which  he  was  placed 
was  justified.  (Digest,  p.  480.) 

The  general  rule  is  that  "  The  acts  of  a  subordinate  officer 
or  soldier,  in  compliance  with  his  supposed  duty,  or  of  su- 
perior orders,  are  justifiable,  and  he  will  be  protected  against 
the  consequences,  unless  they  are  manifestly  beyond  the 
scope  of  his  authority,  and  such  that  a  man  of  ordinary  sense 
and  understanding  would  know  to  be  illegal,  where  he  acts 
in  good  faith  and  without  malice."  (Wharton  on  Homicide, 
3d  ed.,  p.  731.) 

The  foregoing  principles  should  not  be  construed  as  con- 
ferring immunity  on  an  officer  or  soldier  who  willfully  or 


409 


If    442  CHAPTER  XVII. 

through  culpable  negligence  does  acts  endangering  the  lives 
of  innocent  third  parties  in  the  discharge  of  his  duty  to  pre- 
vent escape  or  effect  an  arrest. 

But  where  a  guard  fired  on  a  prisoner  fleeing  down  a  pub- 
lic street  which  was  apparently  clear,  under  circumstances 
that  would  have  justified  the  homicide  of  the  prisoner,  and 
thereby  accidentally  killed  a  young  woman  whom  he  did  not 
see  at  the  time  he  shot,  it  was  held  that  the  homicide  was 
excusable. 

A  homicide  which  is  the  result  of  an  accident  or  misadven- 
ture in  doing  a  lawful  act  in  a  lawful  manner,  or  which  is 
done  in  self-defense  on  a  sudden  affray,  is  excusable.  Thus, 
where  a  lawful  operation,  performed  with  due  care  and  skill, 
causes  the  death  of  the  patient,  the  homicide  is  excusable. 
To  excuse  a  killing  on  the  ground  of  self-defense  upon  a  sud- 
den affray,  the  killing  must  have  been  necessary  to  save  tho 
person's  life  or  the  lives  of  those  whom  he  is  bound  to  pro- 
tect, or  to  prevent  great  bodily  harm  to  himself  or  them. 
The  danger  must  be  believed  on  reasonable  grounds  to  be 
imminent,  and  no  necessity  will  exist  until  the  person,  if  not 
in  his  own  house,  has  retreated  as  far  as  he  safely  can.  The 
person  doing  the  killing  must  not  have  been  the  aggressor 
and  intentionally  provoked  the  difficulty;  but  if  he  with- 
draws in  good  faith  and  his  adversary  follows  and  renews 
the  fight,  the  latter  becomes  the  aggressor. 

The  death  must  take  place  within  a  year  and  a  day  of  the 
act  or  omission  that  caused  it,  and  the  offense  is  committed 
at  the  place  of  such  act  or  omission  although  the  victim  may 
have  died  elsewhere. 

Malice  does  not  necessarily  mean  hatred  or  personal  ill 
will  toward  the  person  killed,  nor  an  actual  intent  to  take  his 
life,  or  even  to  take  anyone's  life.  The  use  of  the  word 
"  aforethought  "  does  not  mean  that  the  malice  must  exist  for 
any  particular  time  before  commission  of  the  act,  or  that  the 
intention  to  kill  must  have  previously  existed.  It  is  suffi- 
cient that  it  exist  at  the  time  the  act  is  committed.  (Clark, 
pp.  187,  188.) 

Malice  aforethought  may  exist  when  the  act  is  unpremedi- 
tated. It  may  mean  any  one  or  more  of  the  following  states 


410 


PUNITIVE  AET1CLES  OF  WAK.  ^f    442 

of  mind  preceding  or  coexisting  with  the  act  or  omission  by 
which  death  is  caused;  (a)  An  intention  to  cause  the  death 
of,  or  grievous  bodily  harm  to,  any  person,  whether  such  per- 
son is  the  person  actually  killed  or  not  (except  when  death 
is  inflicted  in  the  heat  of  a  sudden  passion,  caused  by  adequate 
provocation) ;  (5)  knowledge  that  the  act  which  causes  the 
death  will  probably  cause  the  death  of,  or  grievous  bodily 
harm  to,  any  person,  whether  such  person  is  the  person  actu- 
ally killed  or  not,  although  such  knowledge  is  accompanied 
by  indifference  whether  death  or  grievous  bodily  harm  is 
caused  or  not,  or  by  a  wish  that  it  may  not  be  caused ;  (<?) 
intent  to  commit  any  felony;  (d)  an  intent  to  oppose  force 
to  an  officer  or  other  person  lawfully  engaged  in  the  duty  of 
arresting,  keeping  in  custody,  or  imprisoning  any  person,  or 
the  duty  of  keeping  the  peace,  or  dispersing  an  unlawful  as- 
sembly, provided  the  offender  has  notice  that  the  person 
killed  is  such  officer  or  other  person  so  employed.  (.Clark 
p.  1ST.) 

PEOOF. 

(a)  That  the  accused  killed  a  certain  person  named  or 
described  by  certain  means,  as  alleged.  This  involves  proof — 

(1)  That  the  person  alleged  to  have  been  killed  is 

dead. 

(2)  That  he  died  in  consequence  of  an  injury  received 

by  him. 

(3)  That  such  injury  was  the  result  of  the  act  of  the 

accused. 

(4)  That  the  death  took  place  within  a  year  and  a 

day  of  such  act. 

(Z>)  That  such  killing  was  with  malice  aforethought;  that 
is,  that  the  accused  was  in  one  or  more  of  the  states  of  mind 
described  above. 

II.    RAPE. 

Rape  at  common  law  is  the  having  of  unlawful  carnal 
knowledge  of  a  woman  by  force  and  without  her  consent. 
The  Federal  Penal  Code  provides  (Federal  Penal  Code,  1910,  sec. 
278),  "Whoever  shall  commit  the  crime  of  rape  shall  suffer 
death  " ;  but  does  not  define  the  crime,  thereby  adopting  the 
common  law  definition,  which  governs  conrts-martial. 

411 


If    442  CHAPTER  XVII. 

As  the  carnal  knowledge  must  be  unlawfully  had,  a  hus- 
band who  has  carnal  knowledge  of  his  wife  forcibly  where 
she  does  not  consent  is  not  guilty  of  this  offense;  but  he  is 
guilty  when  he  assists  another  man  in  having  such  carnal 
knowledge. 

Any  penetration,  however  slight,  of  a  woman's  genitals  is 
sufficient  carnal  knowledge,  whether  emission  occurs  or  not. 

The  offense  may  be  committed  on  a  female  of  any  age,  on 
a  man's  mistress,  or  on  a  common  harlot. 

Force  and  want  of  consent  are  indispensable  in  rape ;  but 
the  force  involved  in  the  act  of  penetration  is  alone  sufficient 
force  where  there  is  in  fact  no  consent. 

Where  there  is  actual  consent  to  the  connection,  though 
such  consent  be  obtained  by  fraud,  there  is  no  rape;  thus, 
where  a  woman  agrees  to  connection  with  a  physician  on  his 
false  representation  that  the  act  is  part  of  the  required  treat- 
ment, or  where  a  man  successfully  passes  himself  off  to  a 
woman  as  her  husband  and  is  admitted  by  her  to  connection 
as  such,  the  crime  of  rape  is  not  committed. 

There  is  no  consent  where  the  woman  is  so  idiotic  as  to  be 
incapable  of  consenting,  and  a  man  having  connection  with 
her  not  believing  that  he  has  her  consent  is  guilty  of  rape. 
So  also  where  the  woman  is  insensible,  unconscious,  or  asleep, 
or  where  her  apparent  consent  was  extorted  by  violence  to 
her  person  or  fear  of  sudden  violence. 

Mere  verbal  protestations  and  a  pretense  of  resistance  do 
not  of  course  show  a  want  of  consent,  but  the  contrary,  and 
where  a  woman  fails  to  take  such  measures  to  frustrate  the 
execution  of  the  man's  design  as  she  is  able  to,  and  are  called 
for  by  the  circumstances,  the  same  conclusion  may  be  drawn. 

If  the  girl  is  very  young,  and  not  enlightened  on  the  ques- 
tion, the  court  will  demand  less  clear  opposition  than  in  the 
case  of  an  older  and  intelligent  female,  (Bishop's  New  Criminal 
law,  sec.  1124,  subsec.  1.) 

It  has  been  said  of  this  offense  that  "  it  is  true  that  rape  is 
a  most  detestable  crime  *  *  * ;  but  it  must  be  remembered 
that  it  is  an  accusation  easy  to  be  made,  hard  to  be  proved, 
but  harder  to  be  defended  by  the  party  accused,  though  in- 
nocent," 


412 


PUNITIVE  ARTICLES  OF  WAR.  ^f   443 

PROOF. 

(a)  That  the  accused  had  carnal  knowledge  of  a  certain  fe- 
male, as  alleged ; 

(b)  That  the  act  was  done  by    force    and    without    her 
consent. 

NOTE. — As  to  carnal  knowledge  of  a  female  under  the  age  of  con- 
sent, see  under  A.  W.  96,  par.  446,  Division  III  (4),  infra. 

443.  Ninety-third  Article  of  War: 

Any  person  subject  to  military  law  who  commits  manslaughter, 
mayhem,  arson,  burglary,  housebreaking,  robbery,  larceny,  em- 
bezzlement, perjury,  forgery,  sodomy,  assault  with  intent  to  commit 
any  felony,  assault  with  Intent  to  do  bodily  harm  with  a  dangerous  weapon, 
Instrument,  or  other  thing,  or  assault  with  intent  to  do  bodily  harm, 
shall  be  punished  as  a  court-martial  may  direct. 

.   DEFINITIONS  AND  PRINCIPLES. 

See  matter  under  several  offenses  listed  in  the  article. 
And  see  the  remarks  under  "Definitions  and  Principles,"  para- 
graph 442,  supra,  concerning  the  definitions  of  offenses  under 
A.  W.  92,  93,  and  96. 

ANALYSIS  AND  PROOF. 

This  article  applies  to  any  person  subject  to  military  law 
The  article  embraces  the  following  offenses,  namely ; 

I.  Manslaughter. 

II.  Mayhem. 

III.  Arson. 

IV.  Burglary. 

V.  Housebreaking. 

VI.  Bobbery. 

VII.  Larceny. 

VIII.  Embezzlement. 

IX.  Perjury. 

X.  Forgery. 

XI.  Sodomy. 

XII.  Assault  with  intent  to  commit  any  felony. 

XIII.  Assault  with  intent  to  do  bodily  harm  with  a  dangerous 
weapon,  instrument,  or  other  thing. 

XIV.  Assault  with  intent  to  do  bodily  harm. 


413 


^[    443  CHAPTER  XVII. 

I.    MANSLAUGHTER* 

Manslaughter  at  common  law  is  unlawful  homicide  with- 
out malice  aforethought  and  is  either  voluntary  or  invol- 
untary. 

The  Federal  Penal  Code  provides  (Federal  Penal  Code,  1910, 
sec.  274),  "Manslaughter  is  the  unlawful  killing  of  a  human 
being  without  malice.  It  is  of  two  kinds: 

"First — Voluntary. — Upon  a  sudden  quarrel  or  heat  of  pas- 
sion. 

"  Second — Involuntary. — In  the  commission  of  an  unlawful 
act  not  amounting  to  a  felony,  or  the  commission  of  a  lawful 
act  which  might  produce  death,  in  an  unlawful  manner,  or 
without  due  caution  and  circumspection." 

This  statutory  definition  governs  courts-martial.  It  is,  how- 
ever, declaratory  of  the  common  law,  to  which,  therefore,  ref- 
erence may  be  had  for  the  principles  underlying  the  statutory 
definitions. 

In  voluntary  manslaughter  the  provocation  must  be  such 
as  the  law  deems  adequate  to  excite  uncontrollable  passion 
in  the  mind  of  a  reasonable  man ;  the  act  must  be  committed 
under  and  because  of  the  passion,  and  the  provocation  must 
not  be  sought  or  induced  as  an  excuse  for  killing  or  doing 
bodily  harm.  (Clark,  p.  197.) 

The  killing  may  be  manslaughter  only,  even  if  intentional ; 
but  where  sufficient  cooling  time  elapses  between  the  provo- 
cation and  the  blow  the  killing  is  murder,  even  if  the  passion 
persists.  Instances  of  adequate  provocation  are:  Assault 
and  battery,  inflicting  actual  bodily  harm  or  a  gross  insult ; 
an  unlawful  imprisonment ;  and  the  sight  by  a  husband  of  an 
act  of  adultery  committed  by  his  wife.  If  the  person  so  as- 
saulted or  imprisoned,  or  the  husband  so  situated  at  once 
kills  the  offender  or  offenders  in  a  heat  of  a  sudden  passion 
caused  by  their  acts,  manslaughter  only  has  been  committed. 

Instances  of  inadequate  provocation  are :  Knowledge  by  the 
brother  of  a  female  of  her  seduction;  insulting  or  abusive 
words  or  gestures ;  and  injuries  to  property. 

In  involuntary  manslaughter  in  the  commission  of  an  un- 
lawful act  the  act  must  be  malum  in  se  and  not  merely  malum 
prohibitum.  Thus  the  driving  of  an  automobile  in  slight 


414 


PUNITJVE   ARTICLES   OF   WAR.  ^    443 

excess  of  the  speed  limit  fixed  by  ordinance  is  not  the  kind  of 
unlawful  act  contemplated,  but  voluntarily  engaging  in  an 
affray  is  such  an  act.  To  use  an  immoderate  amount  of 
force  in  suppressing  a  mutiny  is  an  unlawful  act,  and  if  death 
is  caused  thereby  the  one  using  such  force  is  guilty  of  man- 
slaughter at  least, 

Instances  of  culpable  negligence  in  performing  a  lawful 
act  are :  Negligently  conducting  target  practice  so  that  the 
bullets  go  in  the  direction  of  an  inhabited  house  within 
range;  pointing  a  pistol  in  fun  at  another  and  pulling  the 
trigger,  believing,  but  without  taking  reasonable  precautions 
to  ascertain,  that  it  would  not  be  discharged :  carelessly  leav- 
ing poisons  or  dangerous  drugs  where  they  may  endanger 
life. 

Instances  of  culpable  negligence  in  performing  an  act  re- 
quired by  law  are :  Gross  negligence  or  inattention  by  those 
in  charge  of  controlling  or  operating  trains  in  the  discharge 
of  their  duties ;  culpable  failure  on  the  part  of  a  parent  to 
provide  food,  shelter,  and  medical  attendance  for  his  help- 
less child  where  able  to  do  so. 

Where  there  is  no  legal  duty  to  act  there  can,  of  course,  be 
no  neglect.  Thus  where  a  stranger  makes  no  effort  to  save  a 
drowning  man,  or  a  person  allows  a  mendicant  to  freeze  or 
starve  to  death,  no  crime  is  committed. 


PROOF. 


(a)  See  item  (a)  under  "  Proof  of  murder  "  under  ninety- 
second  article. 

(b)  The  facts  and  circumstances  of  the  case,  as  alleged, 
indicating  that   the   homicide   amounted  in  law  to  man- 
slaughter. 

II.    MAYHEM. 

The  Federal  Penal  Code  does  not  recognize  the  crime  of 
mayhem.  (The  offense  of  "  maiming,"  denounced  by  section 
283,  Federal  Penal  Code,  is  a  different  offense;  see  par.  446, 
infra,  "  maiming.")  The  Code  of  the  District  of  Columbia  pre- 
scribing a  punishment  for  mayhem  (D.  C.  Code,  sec.  807)  does 
21358°— 20 27 


415 


^f   443  CHAPTER  XVII. 

not  define  the  offense,  thereby  adopting  the  common-law  defini- 
tion, which  will  govern  courts-martial. 

Mayhem  at  common  law  is  "  a  hurt  of  any  part  of  a  man's 
body  whereby  he  is  rendered  less  able,  in  fighting,  either  to 
defend  himself  or  to  annoy  his  adversary."  (Bishop,  vol.  2, 
p.  579.) 

The  offense  at  common  law  did  not  include  such  injuries 
which  merely  disfigure,  such  as  cutting  off  the  nose  or  ear; 
but  did  include  such  injuries  as  knocking  out  a  front  tooth, 
or  castration,  which  were  supposed  to  weaken  a  man's  fight- 
ing ability. 

The  injury  must  be  willfully  and  maliciously  done,  but 
need  not  be  premeditated.  If  the  hurt  is  done  under  circum- 
stances which  would  excuse  or  justify  a  homicide,  no  offense 
is  committed. 

A  person  inflicting  such  a  hurt  upon  himself  is  guilty  of 
this  offense,  and  if  another  does  it  at  his  request,  both  are  so 
guilty. 

PROOF. 

(a)  That  the  accused  inflicted  on  a  certain  person  a  certain 
injury  in  the  manner  alleged. 

(&)  The  facts  and  circumstances  of  the  act  showing  such 
injury  to  have  been  inflicted  intentionally  and  maliciously. 

III.   AKSON. 

Arson,  at  the  common  law,  is  the  malicious  burning  of  an- 
other's house.  (Bishop,  vol.  2,  p.  5.) 

The  Federal  Penal  Code  provides  (Federal  Penal  Code,  1910, 
sec.  285),  "whoever  shall  willfully  and  maliciously  set  fire  to, 
burn,  or  attempt  to  burn,  or  by  means  of  a  dangerous  explosive 
destroy,  or  attempt  to  destroy,  any  dwelling  house,  or  any  store, 
barn,  stable,  or  other  building,  parcel  of  a  dwelling  house,  shall 
be  imprisoned  not  more  than  twenty  years." 

The  crime  denounced  in  this  statute,  which  governs  courts- 
martial,  is  substantially  the  common  law  crime  of  arson  (TJ.  S. 
v.  Cardish,  143  Fed.,  640),  and  is  the  crime  punishable  as  such 
under  A.  W,  93. 


41G 


PUNITIVE  AKTICLES  OF  WAR.  If    443 

The  house  must  be  the  dwelling  house  of  another,  as  the 
offense  is  against  the  habitation,  not  against  property  as 
such. 

The  term  "  dwelling  house "  includes,  as  laid  down  in  the 
Federal  statute  quoted,  outbuildings  that  form  part  of  the 
cluster  of  buildings  used  as  a  residence.  A  mere  scorching 
is  not  a  burning.  To  constitute  a  burning  some  part,  how- 
ever small,  of  the  house  must  be  actually  consumed  or  dis- 
integrated by  charring  or  by  a  blaze. 

A  shop  or  store  is  not  the  subject  of  arson  unless  occupied 
as  a  dwelling.  It  is  not  arson  to  burn  a  house  that  has  never 
been  occupied  or  which  has  been  permanently  abandoned; 
but  it  is  arson  if  the  occupant  is  merely  temporarily  absent. 
It  is  not  arson  to  burn  one's  own  dwelling,  whoever  owns  it, 
or  even  the  dwelling  of  another  at  his  request,  and  this  is  so 
even  if  there  is  an  intent  to  burn  an  adjoining  house  belong- 
ing to  a  third  party ;  but  it  is  arson  if  such  house  is  actually 
burned.  A  house  occupied  by  another  than  the  owner  is  a 
subject  of  arson  by  the  owner. 

The  burning  must  be  willful  and  malicious,  which  excludes 
a  burning  arising  from  negligence  or  mischance,  unless  the 
accused  was  engaged  in  the  commission  of  a  felony.  Where 
a  man,  who,  in  setting  fire  to  his  own  house  to  get  the  insur- 
ance, burns  his  neighbor's,  he  is  guilty  of  arson  in  burning 
the  neighbor's  house. 

PKOOF. 

(a)  That  the  accused  either: 

(1)  burned, 

(2)  set  fire  to, 

(3)  attempted  to  burn, 

(4)  destroyed  by  means  of  a  dangerous  explosive,  or 

(5)  attempted  to  destroy  by  means  of  a  dangerous  ex- 

plosive, 
a  certain  dwelling  house  of  another,  as  alleged. 

(7>)  Facts  and  circumstances  indicating  that  the  act  was 
willful  and  malicious. 

NOTE. — The  offense  of  burning  other  buildings,  denounced  by  sec- 
tion 286,  Federal  Penal  Code,  is  not  arson,  but  another  offense 
(U.  S.  v.  Cardish,  143  Fed.,  640),  and  is  not  punishable  under  A.  W. 
93,  but  under  A.  W.  96.  (See  par.  446,  infra.) 


417 


TI    443  CHAPTER  XVII. 

IV.   BURGLARY. 

Burglary  is  not  defined  either  by  the  Federal  Penal  Code  or 
by  the  Code  of  the  District  of  Columbia.  Therefore  the  offense 
made  punishable  under  that  name  by  A.  W.  93  is  the  common 
law  crime  of  burglary. 

Burglary  at  common  law  is  the  breaking  and  entering,  in 
the  night,  of  another's  dwelling  house,  with  intent  to  commit 
a  felony  therein.  (Bishop,  vol.  2,  p.  56.) 

To  constitute  burglary  the  house  must  be  a  dwelling  house 
of  another,  the  term  "  dwelling  house  *'  including  outhouses, 
within  the  curtilage  or  the  common  inclosure ;  there  must  be 
an  actual  breaking,  or  there  must  be  the  constructive  break- 
ing involved  where  an  entry  is  effected  by  fraud  or  false  pre- 
tenses, by  intimidation,  by  conspiracy  with  a  servant  or  other 
inmate,  or  by  descent  of  a  chimney ;  there  must  be  an  entry ; 
the  breaking  and  entry  must  both  be  at  night,  but  not  nec- 
essarily on  the  same  night;  and  there  must  be  an  intent  to 
commit  a  felony  in  the  house  at  the  time  of  the  breaking  and 
of  the  entering,  but  the  felony  need  not  be  committed.  (Clark 
and  Marshall,  pp.  595,  596.) 

A  store  is  not  a  subject  of  burglary  unless  part  of  or  used 
also  as  a  dwelling  house,  as  where  the  occupant  uses  another 
part  of  the  same  building  as  his  dwelling ;  or  where  the  store 
is  habitually  slept  in  by  his  servants  or  members  of  his 
family. 

The  house  must  be  in  the  status  of  being  occupied  at  the 
time  of  the  breaking  and  entering.  It  is  not  necessary  to  this 
status  that  anyone  actually  be  in  it;  but  if  the  house  has 
never  been  occupied  at  all  or  has  been  left  without  any  in- 
tention of  returning  to  it  this  status  does  not  exist.  Separate 
dwellings  within  the  same  building,  as  a  flat  in  an  apartment 
house  or  a  room  in  a  hotel,  are  subjects  of  burglary  by  other 
tenants  or  guests,  and  in  general  by  the  owner  of  the  build- 
ing himself.  At  common  law  a  tent  is  not  a  subject  of  bur- 
glary. 

There  must  be  a  breaking,  actual  or  constructive.  Merely 
to  enter  through  a  hole  left  in  the  wall  or  roof  or  through 
an  open  window  or  door,  even  if  left  only  slightly  open  and 
pushed  farther  open  by  the  person  entering,  will  not  consti- 


418 


PUNITIVE  ARTICLES  OF  WAR.  U    443 

tute  an  actual  breaking;  but  where  there  is  any  removal  of 
any  part  of  the  house  designed  to  prevent  entry,  other  than 
the  moving  of  a  partly  open  door  or  window,  it  is  sufficient. 
Thus  opening  a  closed  door  or  window  or  other  similar  fixture, 
or  cutting  out  the  glass  of  a  window  or  the  netting  of  the 
screen  is  a  sufficient  breaking.  So  also  the  breaking  of  an 
inner  door  by  one  who  has  entered  the  house  without  break- 
ing, or  by  a  servant  lawfully  within  the  house,  but  who  has 
no  authority  to  enter  the  particular  room,  is  a  sufficient  break- 
ing, but  unless  such  a  breaking  is  followed  by  an  entry  into 
the  particular  room  with  intent  to  commit  a  felony  therein, 
burglary  is  not  committed. 

There  is  a  constructive  breaking  when  the  entry  is  gained  by 
a  trick,  such  as  concealing  oneself  in  a  box;  or  under  false 
pretense,  such  as  personating  a  gas  or  telephone  inspector ;  or 
by  intimidating  the  inmates  through  violence  or  threats  into 
opening  the  door;  or  through  collusion  with  a  confederate, 
an  inmate  of  the  house ;  or  by  descending  a  chimney,  even  if 
only  a  partial  descent  is  made,  and  no  room  is  entered.  An 
entry  must  be  effected  before  the  offense  is  complete ;  but  the 
entry  of  any  part  of  the  body,  even  a  finger,  is  sufficient ;  and 
an  insertion  into  the  house  of  an  instrument,  except  merely 
to  facilitate  further  entrance,  is  a  sufficient  entry. 

Both  the  breaking  and  entry  must  be  in  the  nighttime, 
which  at  common  law  was  the  period  between  sunset  and  sun- 
rise, when  there  is  not  sufficient  daylight  to  discern  a  man's 
face,  and  both  must  be  done  with  the  intent  to  commit  a 
felony  in  the  house.  It  is  immaterial  whether  the  felony  be 
committed  or  even  attempted,  and  where  a  felony  is  actually 
intended  it  is  no  defense  that  its  commission  was  impossible. 
The  felony  intended  may  be  a  statutory  felony. 


PBOOF. 


(a)  That  the  accused  broke  and  entered  a  certain  dwelling 
house  of  a  certain  other  person,  as  specified. 

(b)  That  such  breaking  and  entering  was  done  in  the 
nighttime. 

(c)  The  facts  and  circumstances  of  the  case  (for  instance, 
the  actual  commission  of  the  felony)   which  indicate  that 


419 


If   443  CHAPTER  XVII. 

such  breaking  and  entering  were  done  with  the  intent  to  com- 
mit the  alleged  felony  therein. 

NOTE. — When,  in  charging  burglary,  it  is  expected  that  the  evi- 
dence will  show  that  larceny  was  also  committed,  a  separate  specifica- 
tion charging  larceny  should  always  be  inserted  in  the  charges,  so 
that,  if  the  court  does  not  find  that  a  burglary  has  been  committed,  but 
that  the  accused  is  guilty  of  larceny,  it  can  find  the  accused  guilty  of 
the  larceny,  or  the  reviewing  authority  can  approve  only  so  much  of 
the  findings  of  guilty  as  find  the  accused  guilty  of  the  larceny. 

V.  Housebreaking. 

The  common  law  does  not  recognize  any  offense  known  by  the 
designation  of  "  housebreaking."  Such  an  offense  is,  however, 
recognized  and  made  punishable  by  section  823  of  the  Penal 
Code  of  the  District  of  Columbia  which  was  in  force  at  the 
time  of  the  enactment  of  the  revision  of  the  Articles  of  War  of 
1920,  and  is  the  offense  made  punishable  as  "  housebreaking  " 
by  the  ninety-third  article  of  war. 

Section  823,  Penal  Code  of  the  District  of  Columbia,  provides: 

Housebreaking. — Whoever  shall,  either  in  the  night  or  in  the  day 
time,  break  and  enter,  or  enter  without  breaking,  any  dwelling, 
bank,  store,  warehouse,  shop,  stable,  or  other  building,  or  any  apart- 
ment or  room,  whether  at  the  time  occupied  or  not,  or  any  steam- 
boat, canal  boat,  vessel,  or  other  water  craft,  or  railroad  car,  or  any 
yard  where  any  lumber,  coal,  or  other  goods  or  chattels  are  deposited 
and  kept  for  the  purpose  of  trade,  with  intent  to  break  and  carry 
away  any  part  thereof  or  any  fixture  or  other  thing  attached  to  or 
connected  with  the  same,  or  to  commit  any  criminal  offense,  shall  be 
imprisoned  for  not  more  than  fifteen  years. 

The  offense  is  akin  to  burglary  at  common  law,  but  differs 
therefrom  principally  in  these  five  particulars : 

(1)  The  house  is  not  required  to  be  a  dwelling  house; 
but  may  be  a  bank,  store,  or  other  building,  boat,  car,  etc., 
named  in  the  statute. 

(2)  It  is  not   necessary   that   the   house,   bank,   store, 
apartment,  room,  etc.,  be  occupied  at  the  time  of  the  break- 
ing and  entering,  or  entering  without  breaking. 

(3)  It  is  not  essential  that  there  be  a  breaking,  as  an 
entry  without  breaking,  if  made  with  the  required  intent, 
also  constitutes  the  offense. 


420 


PUNITIVE  ARTICLES   OF  WAR.  ^f    443 

(4)  The  breaking  and  entering,  or  the  entry  without 
breaking,  may  be  either  in  the  night  or  in  the  day  time. 

(5)  The  intent  need  not  be  to  commit  a  felony,  but  may 
be   (a)   to  commit  any  criminal  offense   (misdemeanor  or 
felony),  or  (b)  to  break  and  carry  away  any  part  of  the 
building  (etc.)  or  any  fixture  or  other  thing  attached  to  or 
connected  with  the  same  (but  such  intent  is  an  essential 
element  of  the  offense,  and  must  therefore  be  alleged  and 
proved,  in  order  to  support  a  conviction  of  this  offense). 

The  caution  in  the  Note  under  "  burglary,"  supra,  as  to  plead- 
ing, where  larceny  has  actually  been  committed,  applies  here 
also. 

PROOF. 

(a)  That  the  accused  broke  and  entered,  or  entered  without 
breaking,  as  alleged — 

A  dwelling1, 

A  bank, 

A  store, 

A  warehouse, 

A  shop, 

A  stable, 

A  building  of  any  other  kind, 

An  apartment, 

A  room, 

A  steamboat, 

A  canal  boat, 

A  vessel  or  other  water  craft, 

A  railroad  car,  or 

A  yard  where  any  lumber  or  coal  or  other  goods  or  chat- 
tels were  at  the  time  deposited  and  kept  for  the  pur- 
pose of  trade. 

(b)  The  facts  and  circumstances  of  the  case  (as,  for  instance, 
the  actual  commission  of  a  felony  or  of  petit  larceny)  which 
indicate  that  the  intent  was,  as  alleged,  to  commit  some  crimi- 
nal offense  (whether  felony  or  misdemeanor),  or  to  break  and 
carry  away  some  part  of  the  building,  etc.,  or  some  fixture  or 
other  thing  attached  to  or  connected  with  the  same. 


421 


^  443  CHAPTER  xvii. 

VI.   ROBBERY. 

Section  284  of  the  Federal  Penal  Code  of  1910  provides: 

Whoever,  by  force  and  violence,  or  by  putting  in  fear,  shall  felon- 
iously take  from  the  person  or  presence  of  another  anything  of 
value,  shall  be  imprisoned  not  more  than  fifteen  years. 

This  statute  governs  court-martial. 

Robbery  at  common  law  is  the  taking,  with  intent  to  steal, 
of  the  personal  property  of  another,  from  his  person  or  in 
his  presence,  against  his  will,  by  violence  or  intimidation. 
(Clark,  p.  323.) 

The  felonious  and  forcible  taking  from  the  person  of  an- 
other goods  or  money  to  any  value  by  violence  or  putting 
him  in  fear.  (Bouvier's  Law  Dictionary,  Rawle's  3rd  Re- 
vision, vol.  3,  p.  2971.) 

Robbery  includes  larceny  and  the  elements  of  that  offense 
must  always  be  present  and  must  be  alleged  in  the  specification 
and  proved  at  the  trial.  See  matter  under  heading  "VII" 
under  this  article. 

Thus  it  is  not  robbery  to  take  one's  own  property,  unless 
the  person  from  whom  it  is  taken  has  a  special  property  in 
the  goods  and  the  right  to  possession;  nor  is  it  robbery  to 
take  property  that  is  honestly  believed  to  be  one's  own  or  to 
take  it  for  a  merely  temporary  use. 

It  is  not  necessary  that  the  person  from  whom  the  prop- 
erty is  taken  be  the  actual  owner — it  is  enough  if  he  have  a 
possession  or  a  custody  that  is  good  against  the  taker. 

.The  property  must  be  taken  from  the  person  or  in  his 
presence;  but  to  be  in  the  presence  it  is  not  necessary  that 
the  owner  be  within  any  certain  distance  of  his  property ;  it 
is  enough  if  he  be  near  enough  to  be  in  control  of  his  prop- 
erty. Thus  where  some  persons  entered  a  house  and  forced 
the  owner  by  threats  to  disclose  the  hiding  place  of  valuables 
in  an  adjoining  room,  and  then,  leaving  the  owner  tied,  went 
into  such  room  and  stole  the  valuables  their  offense  was  held 
to  be  robbery. 

The  taking  must  be  against  the  owner's  will  by  means  of 
violence  or  intimidation.  The  violence  or  intimidation  must 
precede  or  accompany  the  taking.  Thus  where  property  is 


422 


PUNITIVE  ARTICLES  OF  WAR.  If    443 

taken  by  stealth  from  the  person  of  its  owner  it  is  not  rob- 
bery in  case  the  thief  overcomes  a  forcible  effort  to  retake  it ; 
or  the  owner  is  deterred  by  the  threats  of  the  thief  from  mak- 
ing an  attempt  to  retake  it. 

The  violence  must  be  actual  violence  to  the  person,  but  the 
amount  of  violence  used  is  immaterial.  It  is  enough  where 
it  overcomes  the  actual  resistance  of  the  person  robbed,  or 
puts  him  in  such  a  position  that  he  makes  no  resistance,  or 
suffices  to  overcome  the  resistance  offered  by  a  chain  or  other 
fastening  by  which  the  article  is  attached  to  the  person. 
Where  an  article  is  merely  snatched  out  of  another's  hand  or 
a  pocket  is  picked  by  stealth  and  no  other  force  is  used  and 
the  owner  is  not  put  in  fear,  the  offense  is  not  robbery.  But 
if  in  snatching  the  article  resistance  is  overcome,  there  is 
sufficient  violence,  as  where  a  woman's  earring  is  torn  from 
her  ear  or  a  hair  ornament  entangled  in  her  hair  is  snatched 
away.  So,  also,  when  a  person's  attention  is  diverted  by  be- 
ing jostled  by  a  confederate  of  a  pickpocket,  who  is  thus  en- 
abled to  steal  the  person's  watch,  it  is  a  robbery. 

Other  instances  of  robbery  by  violence  are  where  a  man  is 
knocked  insensible  and  his  pockets  rifled,  and  where  an  officer 
steals  property  from  the  person  of  a  prisoner  in  his  charge 
after  handcuffing  him  on  the  pretext  of  preventing  his  escape. 

It  is  equally  robbery  whether  the  robber  prevents  resist- 
ance by  rendering  his  victim  physically  incapable  of  making 
any,  or  by  putting  him,  by  threat  or  menaces,  in  such  fear 
that  he  is  warranted  in  making  none.  The  fear  must  be  a 
reasonably  well-founded  apprehension  of  present  or  future 
clanger,  and  the  goods  must  be  taken  while  such  apprehen- 
sion exists.  The  danger  apprehended  may  be,  for  instance, 
his  own  death  or  some  bodily  injury  to  him,  or  the  destruction 
of  his  habitation,  or  a  prosecution  for  sodomy. 

In  the  last  case  it  is  immaterial  whether  the  person  threat- 
ened with  the  prosecution  is  innocent  or  guilty  of  the  offense. 
A  danger  of  being  prosecuted  for  any  other  offense  is  held 
not  to  be  sufficient.  (Clark  and  Marshall,  p.  556.) 

When  the  evidence  falls  short  of  proving  the  force  or  fear,  or 
other  facts,  necessary  to  robbery,  the  accused,  "by  proper  ex- 
ceptions, may  be  found  guilty  of  larceny,  when  properly  alleged. 


423 


^    443  CHAPTER  XVII. 

PBOOF. 

(a)  The  larceny  of  the  property.     See  proof  under  larceny 
infra. 

(b)  That  such  larceny  was  from  the  person  or  in  the  pres- 
ence of  the  person  alleged  to  have  been  robbed. 

(c)  That  the  taking  was  by  violence  or  putting  in  fear,  as 
alleged. 

VII.    LARCENY. 

Section  287  of  the  Federal  Penal  Code  of  1910  provides: 
Whoever  shall  take  and  cany  away,  with  intent  to  steal  or  pur- 
loin, any  personal  property  of  another,  shall  be  punished  as  follows: 
If  the  property  taken  is  of  a  value  exceeding  fifty  dollars,  or  is  taken 
from  the  person  of  another,  by  a  fine  of  not  more  than  ten  thousand 
dollars  or  imprisonment  for  not  more  than  ten  years,  or  both;  in  all 
other  cases,  by  a  fine  of  not  more  than  one  thousand  dollars  or  by 
imprisonment  not  more  than  one  year,  or  both.  If  the  property 
stolen  consists  of  any  evidence  of  debt,  or  other  written  instrument, 
the  amount  of  money  due  thereon,  or  secured  to  be  paid  thereby, 
and  remaining  unsatisfied,  or  which  in  any  contingency  might  be 
collected  thereon,  or  the  value  of  the  property  the  title  to  which  is 
shown  thereby,  or  the  sum  which  might  be  recovered  in  the  absence 
thereof,  shall  be  deemed  to  be  the  value  of  the  property  stolen. 

This  is  substantially  the  common-law  offense  of  larceny. 

In  larceny  there  must  be  a  taking  and  carrying  away. 
When  actual  physical  possession  is  obtained  and  the  property 
moved  the  least  distance,  the  taking  and  carrying  away  is 
complete.  Such  possession  must,  however,  be  complete; 
thus,  enticing  a  domestic  animal  a  short  distance,  or  seizing 
property  secured  by  a  chain,  or  causing  another  to  drop  prop- 
erty by  knocking  his  hand  is  not  a  taking  of  such  property. 
The  taking  need  not  be  by  the  hands  of  the  thief.  Thus, 
where  one,  having  the  required  intent  to  steal,  entices  a  horse 
into  his  own  stable  without  touching  him,  or  procures  an  in- 
sane person  to  take  the  goods,  or  procures  a  railroad  com- 
pany to  deliver  another's  trunk  by  changing  the  check  on  it, 
he  is  guilty  of  larceny. 

The  taking  must  be  from  the  actual  or  constructive  posses- 
sion of  the  owner  without  his  consent. 

One  who  has  a  lawful  right  to  the  possession  of  the  prop- 
erty of  another  can  not  steal  it.  Thus  where  an  article  is  bor- 


424 


PUNITIVE  AKTICLES  OF  WAR.  f    443 

rowed  or  hired  in  good  faith  the  bailee  does  not  commit  lar- 
ceny if  he  subsequently  during  the  bailment  decides  to  and 
does  convert  the  article  to  his  own  use.  But  if  at  the  time 
the  article  is  borrowed,  etc.,  the  borrower  intends  to  convert 
it,  such  a  taking  is  larceny.  And  where  the  possession  of  an 
article  is  obtained  by  fraud,  although  no  intent  to  steal  ex- 
isted at  the  time,  a  subsequent  forming  and  carrying  out  of 
such  intent  is  a  larceny.  Thus  acceptance  of  the  possession, 
knowing  of  the  mistake  and  with  the  required  intent,  is  a 
larceny ;  but  if  he  accepts  it  in  ignorance  of  the  mistake  and 
in  good  faith  as  intended  for  him,  his  subsequent  appropriat- 
ing to  his  own  use  is  not  a  larceny. 

This  same  rule  applies  where  a  person  is  paid  by  mistake 
more  money  than  he  is  entitled  to. 

The  possession  of  goods  may  be  in  one  person  although 
the  goods  themselves  be  in  the  actual  manual  control  of  an- 
other, who  is  said  to  have  the  custody  of  them.  Thus,  where 
the  owner  of  a  coin  gives  it  to  a  friend  to  examine  on  the  spot, 
he  still  retains  the  possession,  and  if  the  recipient  goes  away 
with  the  coin  intending  to  steal  it  he  is  guilty  of  larceny.  So, 
too,  a  guest  at  a  hotel  or  a  private  house  has  the  bare  custody 
of  articles  such  as  those  in  his  room  or  given  him  for  use  at 
the  table  and  can  commit  a  larceny  of  such  articles. 

Where  a  servant  receives  goods  or  coins  from  his  master 
to  use,  care  for,  or  employ  for  a  specific  purpose  in  his  service, 
the  master  retains  possession  and  the  servant  has  the  eustody 
only  and  may  commit  larceny  of  them.  The  fact  of  the  ex- 
istence of  the  relationship  of  master  and  servant  does  not 
prevent  the  latter  from  being  a  bailee  of  the  former's  prop- 
erty, in  which  case  the  rules  as  to  bailees  apply;  for  instance, 
a  master  might  lend  his  servant  a  horse  to  use  on  the  latter's 
own  business.  Where,  however,  a  servant  receives  goods  or 
coins  from  a  third  person  on  behalf  of  his  master  he  has  the 
possession  of  the  goods  or  coins  and  can  not  commit  a  larceny 
of  them  until  they  have  reached  the  possession  of  his  master, 
which  they  do  when  delivered  into  his  hands  or  deposited  in 
the  receptacle  or  place  provided  for  the  purpose.  Thus,  if  a 
clerk  receive  some  coins  for  his  master  in  the  course  of  busi- 
ness and  place  them  in  the  cash  drawer  or  safe  belonging  to 


425 


*[[    443  CHAPTER   XVII. 

the  master,  he  no  longer  has  the  possession  of  the  coins  and 
his  taking  of  them  with  the  requisite  intent  would  be  larceny ; 
but  he  does  not  relinquish  possession  if,  merely  for  his  own 
convenience,  he  uses  the  safe  or  drawer  as  a  hiding  place. 
His  subsequent  taking  of  the  coins  would  not,  therefore,  be 
larceny. 

The  distinction  between  custody  and  possession  is  of  the 
utmost  importance,  for  it  is  often  very  difficult  to  determine 
whether  the  crime  is  larceny  or  embezzlement,  each  particular 
case  depending  upon  the  peculiar  circumstances.  To  illus- 
trate the  doctrine :  Where  a  third  person  hands  a  clerk  money 
to  pay  a  bill  which  he  owes  the  clerk's  employer,  and  the 
clerk,  instead  of  putting  the  money  into  his  employer's  safe 
or  other  proper  place,  puts  it  into  his  own  pocket  and  appro- 
priates it,  or  hides  it  on  the  premises  and  afterwards  carries 
it  off,  he  does  not  commit  larceny,  for,  as  the  money  has  not 
reached  its  destination,  but  is  merely  in  transit,  the  master 
has  not  obtained'possession,  either  actual  or  constructive.  If, 
however,  the  clerk  puts  the  moneys  in  the  safe,  it  is  in  his 
employer's  constructive  possession;  and  if  he  takes  it  out 
again  and  converts  it,  he  is  guilty  of  larceny.  If  it  is  not  the 
duty  of  the  clerk  to  put  the  money  in  the  safe,  but  he  is  re- 
quired to  keep  it  on  his  person  for  his  master,  then,  as  soon 
as  he  received  the  money,  it  has  reached  its  ultimate  destina- 
tion, and  he  will  be  guilty  if  he  appropriates  it,  instead  of 
holding  it  for  his  master.  If  a -master  gives  his  servant  a 
check  to  take  to  the  bank  and  get  cashed  he  has  mere  custody 
of  the  check  itself,  and  commits  larceny  if  he  appropriates  it ; 
but  if  he  cashes  the  check  and  appropriates  the  money  he 
commits  embezzlement  only,  as  the  money  has  never  been  in 
the  master's  possession.  (Clark,  pp.  285,  286.) 

Where  the  owner  of  an  article  delivers  ifc  to  another,  in- 
tending at  the  time  an  unconditional  passing  of  the  property 
as  well  as  the  possession,  the  other  can  not  be  guilty  of  larceny, 
whatever  the  inducement  employed  by  him.  Thus  where 
property  is  obtained  from  a  dealer  on  the  false  pretense  of 
being  sent  for  it  by  a  regular  charge  customer,  or  where 
property  is  bought  on  credit  with  no  intention  of  paying,  or 
where  a  bogus  check  is  given  in  payment  of  goods  or  in  ex- 


426 


PUNITIVE  ARTICLES  OF  WAK.  ^f    443 

change  for  money,  or  where  money  is  borrowed  on  false  pre- 
tenses with  the  understanding  that  different  coins  or  bills 
are  to  be  returned,  there  is  no  larceny. 

In  the  case  of  property  delivered  by  servants  or  agents, 
such  delivery  can  not  go  beyond  the  actual  or  apparent  au- 
thority of  the  servant  or  agent.  So  where  a  master  sends  his 
servant  with  a  c.  o.  d.  package,  and  the  purchaser  induces  the 
servant  to  give  him  the  package  without  payment  or  pays 
with  a  worthless  check,  intending  to  keep  the  package,  it  is 
larceny. 

The  reason  for  the  rule  above  stated,  as  to  an  intention  to 
pass  the  property  preventing  the  taking  from  amounting  to 
larceny,  is  that  the  consent  of  the  owner  precludes  the  exist- 
ence of  an  essential  element  of  larceny.  But  where  the  taking 
overlaps  the  consent  given,  and  where  the  other  elements  of 
larceny  are  present,  he  who  does  the  taking  is  guilty  of  the 
offense.  Thus  where  one  gets  candy  from  a  slot  machine 
by  using  a  counterfeit  coin,  or  where  a  customer  after  buying 
a  cigar  takes  the  whole  box  of  matches  provided  by  owner  of 
the  store  for  the  use  of  his  customer,  the  offenders  are  guilty 
of  larceny  if  the  other  elements  of  that  offense  are  present. 

Another  application  of  the  rule  that  the  consent  must  be  as 
broad  as  the  taking  is  made  in  cases  where  the  owner's  intent 
is  to  pass  the  property  in  the  goods  only  when  a  condition  is 
fulfilled.  Thus  where  goods  are  handed  to  a  purchaser  on  a 
cash  sale  the  title  is  not  intended  to  pass  until  the  price  is 
paid;  and  if  the  person  receiving  them  runs  off  with  the 
goods  without  paying  for  them  and  with  the  required  intent 
he  is  guilty  of  larceny. 

This  rule  applies  in  many  analagous  cases.  For  instance, 
•it  is  larceny  "  for  a  man  to  whom  money  is  handed  to  be 
changed  to  run  off  with  it  or  keep  it,  animo  furandi,  and  re- 
fuse to  give  the  change,  though  the  intention  may  be  that  he 
shall  keep  part  of  it  as  pajment  for  goods  purchased  or  as 
a  loan,  for  there  is  no  consent  to  part  with  the  money  without 
receiving  the  change."  (Clark  and  Marshal,  p.  467.)  In 
these  cases  of  conditional  delivery  the  recipient  has  only  the 
bare  custody,  and  it  is  therefore  immaterial  whether  the  in- 
tent to  steal  existed  at  the  time  of  the  delivery,  or  was  formed 
later. 

427 


^[443  CHAPTER  XVII. 

The  taking  may  be  from  any  one  having  possession  of  the 
property;  hence,  property  may  be  stolen  from  one  who  him- 
self has  stolen  it,  and  the  owner  of  goods  may  steal  them 
from  a  bailee  with  a  special  property  in  them. 

One  retains  the  constructive  possession  of  property  al- 
though it  is  actually  out  of  his  control  until  some  one  else 
takes  possession,  except  in  the  case  of  abandoned  property. 
So  where  a  desk  was  sold  and  coins  were  afterwards  found 
by  the  purchaser  in  a  secret  drawer  and  taken  by  him,  he 
takes  it  from  the  possession  of  the  owner.  Where  a  person 
finds  property  he  has  a  right  to  take  it  and  examine  it.  If 
the  circumstances  give  him  no  clue  to  the  ownership  he  can 
rightfully  appropriate  it,  and  this  act  or  a  subsequent  refusal 
to  give  it  up  to  the  owner  will  not  be  a  larceny.  If  the  cir- 
cumstances do  give  him  such  a  clue  he  can  rightfully  assume 
possession  for  the  owner  and  a  subsequent  change  of  intent 
and  an  appropriation  of  the  property  would  not  be  a  larceny, 
but  where  he  intends  to  appropriate  it  at  the  time  he  assumes 
possession  he  is  guilty  of  larceny,  and  none  the  less  so  if  he 
intends  to  return  it  in  the  event  that  a  reward  is  given. 

In  larceny,  as  in  other  crimes,  the  evil  intent  and  the  act 
must  coexist;  that  is,  as  stated  in  the  definition  of  larceny, 
the  taking  and  removing  must  be  with  the  particular  intent 
described. 

Where  the  original  taking  was  wrongful,  there  a  subsequent 
felonious  intent  makes  the  offense  larceny  in  all  cases  in  which 
there  is  concurrently  with  such  intent,  although  subsequent  to 
the  taking,  a  fraudulent  conversion  or  transmutation  of  the 
goods.  Thus  it  has  been  held  that  where  a  man,  driving  away  a 
flock  of  lambs,  negligently  took  a  lamb  belonging  to  a  third 
party,  and  then,  upon  subsequently  finding  out  the  fact  of  the 
true  ownership,  fraudulently  converted  the  lamb  to  his  own 
use,  taking  it  from  the  rest  of  the  flock,  that  this  was  larceny. 
(Keg.  v.  Riley,  14  Eng.  L.  &  Eq.  Rep.  566;  6  Cox,  C.  C.  88.) 

The  felonious  intent  in  larceny  is  that  entertained  by  a 
thief;  i.  e.,  a  fraudulent  intent  to  deprive  the  owner  perma- 
nently of  his  property  in  the  goods  or  of  their  value  or  a  part 
of  their  value.  Unless  such  a  purpose  exist  with  the  taking 
and  carrying  away  there  is  no  larceny. 


428 


PUNITIVE  ARTICLES   OF  WAR.  ^f    443 

Thus  larceny  is  not  committed  where  the  taking  was  with- 
out any  intent  at  all  as  regards  the  property,  as  in  the  case 
of  property  taken  by  mistake  or  accidentally;  or  where  the 
intent  was  to  take  one's  own  property,  as  in  the  case  of  prop- 
erty taken  under  a  bona  fide  claim  of  right,  however  un- 
founded ;  or  where  the  intent  was  to  take  another's  property 
temporarily  from  his  possession,  as  in  the  case  of  property 
taken  for  a  temporary  use,  or  in  fun,  or  out  of  curiosity,  or 
to  keep  for  him,  or  to  deprive  him  of  the  power  of  using  it. 
Thus  if  one  takes  a  horse  merely  to  enable  him  to  escape  with 
stolen  property,  or  takes  property  from  a  drunken  friend  in 
order  to  prevent  him  from  losing  it,  or  taking  a  cudgel  out 
of  the  owner's  hand  to  prevent  a  beating  there  is  no  larceny. 

Whether  the  required  intent  exists  where  property  is  taken 
to  pawn  or  hold  for  a  reward  depends  upon  the  circumstances. 
Some  cases  of  taking  property  to  pledge  would  come  within 
the  above  rule  as  to  temporary  use,  as  where  the  intent  is 
in  good  faith  to  redeem  and  return  it ;  but  in  the  absence  of 
such  intent  the  taking  is  larceny. 

Where  the  taking  is  with  the  design  of  returning  it  to  the 
owner,  but  in  the  hope  of  obtaining  a  reward,  it  is  not  lar- 
ceny ;  but  if  the  purpose  is  to  keep  the  property  until  a  re- 
ward is  offered  it  is.  Taking  property  with  the  intent  to 
sell  it  back  to  the  owner  or  return  it  to  him  for  some  other 
consideration  is,  of  course,  more  indicative  of  than  incon- 
sistent with  the  existence  of  the  required  intent.  Thus,  steal- 
ing a  railroad  ticket  is  none  the  less  stealing  because  it  was 
intended  to  be  returned  to  the  railroad  when  made  use  of. 

Once  the  goods  are  taken  and  removed  with  the  felonious 
intent  above  described  the  offense  is  complete  and  is  none 
the  less  a  larceny  because  the  thief  may  have  had  in  mind  a 
disposition  of  the  property  without  benefit  or  advantage  to 
himself.  Thus,  an  intent  to  give  it  to  another  or  to  destroy 
it  out  of  revenge,  or  to  prevent  its  use  as  evidence  or  other- 
wise against  himself  or  another,  does  not  prevent  the  felon- 
ious taking  of  another's  property  from  being  larceny. 

In  line  with  this  principle  it  has  been  held  that  a  servant 
who  clandestinely  took  his  master's  oats  for  the  purpose  of 
feeding  them  to  his  master's  horse  was  guilty  of  larceny. 


420 


TJ    443  CHAPTER   XVII. 

When  a  larceny  has  been  committed  a  prompt  repentance 
by  the  thief,  followed  by  a  return  of  the  property  or  pay- 
ment for  it,  is  no  defense. 

Personal  property  only  can  be  stolen.  Thus,  where  trees, 
fences,  crops,  or  fixtures  are  cut  down  or  severed  by  a  tres- 
passer and  immediately  taken  away  by  him,  there  is  no 
larceny.  But  should  the  trespasser,  after  cutting  down  some 
trees,  for  instance,  leave  the  fallen  timber  and  relinquish  his 
possession,  the  possession  of  the  owner  attaches  to  the  prop- 
erty in  its  new  character  as  personal  property,  and  a  sub- 
sequent taking  by  the  trespasser  with  intent  to  steal  is 
larceny. 

A  piece  of  paper  may  be  stolen,  though  its  value  is  less 
than  that  of  the  smallest  coin.  A  promissory  note,  a  bank 
note,  or  a  post-exchange  check  or  other  writing  evidencing 
a  chose  in  action  is,  under  section  287,  Federal  Penal  Code, 
supra,  subject  to  theft  and  is  to  be  deemed  of  the  value  of  the 
amount  of  money  due  thereon,  or  secured  to  be  paid  thereby  and 
remaining  unsatisfied,  or  which  in  any  contingency  might  be 
collected  thereon,  or  the  value  of  the  property  the  title  to  which 
is  shown  thereby,  or  the  sum  which  might  be  recovered  in  the 
absence  thereof. 

PEOOF. 

(a)  The  taking  by  the  accused  of  the  property  as  alleged. 

(b)  The  carrying  away  by  the  accused  of  such  property. 

(c)  That  such  property  belonged  to  a  certain  other  per- 
son named  or  described. 

(d)  That  such  property  was  of  the  value  alleged,  or  of 
some  value. 

(e)  The  facts  and  circumstances  of  the  case  indicating 
that  the  taking  and  carrying  away  were  with  a  fraudulent 
intent  to  deprive  the  owner  permanently  of  his  property  or 
interest  in  the  goods  or  of  their  value  or  a  part  of  their  value. 

VIII.    EMBEZZLEMENT. 

There  is  no  section  of  the  Federal  Penal  Code  defining,  for 
general  purposes,  the  crime  of  embezzlement.  Therefore,  courts- 
martial  will  be  governed  by  sections  834,  835,  and  85 Ib  of  the 
Code  of  the  District  of  Columbia,  which  provide : 


430 


FUGITIVE  AKTICLES  OF  WAR.  H    443 

Sec.  834.  Embezzlement  by  Agent,  Attorney,  Clerk,  or  Servant.— 
If  any  agent,  attorney,  clerk,  or  servant  of  a  private  person  or  co- 
partnership, or  any  officer,  attorney,  tagent,  clerk,  or  servant  of  any 
association  or  incorporated  company,  shall  wrongfully  convert  to 
his  own  use,  or  fraudulently  take,  make  way  with,  or  secrete,  with 
intent  to  convert  to  his  own  use,  anything  of  value  which  shall  come 
into  his  possession  or  under  his  care  by  virtue  of  his  employment 
or  office,  whether  the  thing  so  converted  be  the  property  of  his 
master  or  employer  or  that  of  any  other  person,  copartnership,  asso- 
ciation, or  corporation,  he  shall  be  deemed  guilty  of  embezzlement, 
and  shall  be  punished  by  a  fine  not  exceeding  one  thousand  dollars 
or  imprisonment  for  not  more  than  ten  years,  o*  both. 

Sec.  835.  Embezzlement  of  Note  Not  Delivered. — Every  embezzle- 
ment of  any  evidence  of  debt  negotiable  by  delivery  only,  actually 
executed  by  the  master  or  employer  of  any  such  clerk,  attorney, 
agent,  officer,  or  servant,  but  not  delivered  or  issued  as  a  valid  in- 
strument, shall  be  deemed  an  offense  within  the  meaning  of  the  last 
preceding  section. 

Sec.  851b.  That  if  any  person  intrusted  with  the  possession  of  any- 
thing of  value,  including  things  savoring  of  the  realty,  for  the  purpose 
of  applying  the  same  for  the  use  and  benefit  of  the  owner  or  person  so 
delivering  it,  shall  fraudulently  convert  the  same  to  his  own  use  he 
shall,  where  the  value  of  the  thing  so  converted  is  $35  or  more,  be 
punished  by  imprisonment  for  not  less  than  1  nor  more  than  10  years, 
or  by  a  fine  of  not  more  than  $1,000,  or  both;  and  where  the  value  of 
the  thing  so  converted  is  less  than  $35  he  shall  be  punished  by  im- 
prisonment for  not  more  than  1  year  or  by  a  fine  of  not  more  than 
$500,  or  both:  Provided,  That  nothing  contained  in  this  section  shall 
be  construed  to  alter  or  repeal  the  foregoing  sections  contained  in 
Subchapter  II  .of  Chapter  XIX  of  this  code. — Act  approved  March  3, 
1913  (37  Stat.  727.) 

Embezzlement  differs  from  larceny  in  that  the  original 
taking  of  the  property  was  lawful  or  with  the  consent  6f  the 
owner,  while  in  larceny  the  felonious  intent  must  have  existed 
at  the  time  of  the  taking.  (Cyc.,  vol.  15,  p.  488.) 

Embezzlement  is  not  a  common  law  but  a  statutory  of- 
fense. 

The  purpose  of  embezzlement  statutes  is  to  meet  the  case 
of  a  servant,  clerk,  bailee,  or  other  person  to  whom  the  pos- 
session of  property  is  intrusted  by  or  for  the  owner,  and  who 
misappropriates  it  to  his  own  use  or  otherwise,  the  circum- 
stances being  such  that  the  act  is  not  larceny. 

The  gist  of  the  offense  is  a  breach  of  trust,  and  can  not  be 
committed  unless  some  fiduciary  relationship  exists  between 
the  owner  and  the  person  in  possession  of  the  property  and 

21358°— 20 28  431 


^443  CHAPTER  XVII. 

unless  such  possession  was  taken  by  virtue  of  such  relation- 
ship. 

PKOOF. 

(a)  That  the  accused  was  the  clerk  or  servant  of  a  certain 
other  person  or  stood  in  some  other  fiduciary  relationship  to 
that  person,  as  alleged. 

(b)  That  in  such  fiduciary  capacity  the  accused  received 
into  his  possession  certain  money  or  property  of  such  per- 
son, as  alleged. 

(c)  That  he  fraudulently  converted  or  appropriated  to  his 
own  use  such  money  or  property. 

(d)  The  facts  and  circumstances  showing  that  such  conver- 
sion or  appropriation  was  with  fraudulent  intent. 

NOTE  1. — Section  905  of  the  Code  of  the  District  of  Columbia  pro- 
vides: 

"  Sec.  905.  The  words  '  anything  of  value,'  wherever  they  occur  in 
this  chapter,  shall  be  held  to  include  not  only  things  possessing  in- 
trinsic value,  but  bank  notes  and  other  forms  of  paper  money,  and 
commercial  paper  and  other  writings  which  represent  value." 

IX.  PERJURY. 

Section  125  of  the  Federal  Penal  Code  of  1910  provides: 
Whoever,  having  taken  an  oath  before  a  competent  tribunal,  officer, 
or  person,  in  any  case  in  which  a  law  of  the  United  States  authorizes 
aa  oath  to  be  administered,  that  he  will  testify,  declare,  depose,  or 
certify  truly,  or  that  any  written  testimony,  declaration,  deposition, 
or  certificate  by  him  subscribed  is  true,  shall  willfully  and  contrary  to 
such  oath  state  or  subscribe  any  material  matter  which  he  does  not 
believe  to  be  true,  is  guilty  of  perjury,  and  shall  b«  fined  not  more 
than  two  thousand  dollars  and  imprisoned  not  more  than  five  years. 

The  words  "competent  tribunal,  officer,  or  person"  do  not 
necessarily  mean  that  the  tribunal  by  which  the  oath  is  adminis- 
tered shall  have  been  created  by  the  Government  which  required 
it  to  be  taken,  nor  that  the  officer  who  administers  it  shall  be 
an  officer  of  that  Government.  But  the  statute  means  that  the 
oath  must,  at  any  rate,  be  permitted  or  required  by  some  law  of 
the  "United  States,  and  be  administered  by  some  tribunal,  officer, 
or  person  authorized  by  a  law  of  the  United  States  to  administer 
oaths  in  respect  of  the  particular  matters  to  which  it  relates, 
(United  States  v.  Curtis,  107  U.  S.,  671,  673.) 


432 


PUNITIVE  ARTICLES  OF  "WAK.  '[f    443 

The  usual  and  ordinary  meaning:  of  the  word  "deposition" 
is  written  testimony  in  legal  proceedings.  The  words  "  declara- 
tion "  and  "  certificate  "  are  used  in  the  statute  in  the  ordinary 
and  popular  sense,  and  signify  any  statement  of  material  mat- 
ters of  fact  sworn  to  and  signed  by  the  party  charged.  (United 
States  v.  Ambrose,  108  IT.  S.,  336,  340.) 

To  constitute  perjury  it  is  not  sufficient  that  the  oath  taken 
be  false  and  untrue  as  to  some  material  matter,  but  it  must 
further  appear  that  the  party  knew  at  the  time  of  taking  the 
oath  that  the  same  was  false  and  untrue,  or  else  that  he  swore 
to  his  knowledge  as  of  a  fact,  knowing  that  he  had  no  such 
knowledge. 

Perjury  may  be  committed  either  by  swearing  to  a  fact  which 
the  witness  knows  is  untrue  or  by  swearing  to  his  knowledge 
of  the  fact  when  he  knows  that  he  has  no  such  knowledge.  So 
also  a  witness  may  commit  perjury  in  testifying  falsely  as  to 
his  belief,  remembrance,  or  impression,  or  as  to  his  judgment  or 
opinion  on  matters  of  fact.  Thus,  where  a  witness  swears  that 
he  does  not  remember  certain  facts,  when  in  fact  he  does,  he 
commits  perjury,  if  the  other  elements  of  the  offense  are  present. 
So,  also,  where  a  witness  testified  that  in  his  opinion  a  certain 
person  was  drunk,  when  in  fact  he  entertains  the  contrary 
opinion. 

It  is  not  necessary  that  the  proceeding  in  which  the  oath  is 
taken  should  be  a  judicial  proceeding.  (United  States  v.  Eardi- 
son,  135  Fed.  Hep.,  419,  423.) 

Thus  perjury  is  committed  where  a  false  oath  is  taken  as  to 
a  pension  claim  before  a  justice  of  the  peace;  where  one  inten- 
tionally swears  falsely  in  making  return  of  his  income,  although 
the  statute  imposing  a  tax  upon  income  does  not  provide  for 
compulsory  disclosure  under  oath;  where  one  testifies  falsely  to 
the  credibility  of  a  witness,  such  credibility  being  material;  or 
where  one  testifies  that  he  has  never  been  in  prison,  the  fact 
being  otherwise ;  and  where  statements  which  the  deponent  does 
not,  believe  to  be  true  are  made  on  a  justification  as  bail.  Per- 
jury committed  at  an  examination  before  a  United  States  com- 
missioner, under  an  act  of  Congress,  is  within  this  section.  (Ex 
parte  Bridges,  Brown  v.  United  States,  4  Fed.  Gas.,  99,  105.) 


^[    443  CHAPTER  XVII. 

It  is  not  perjury  to  testify  by  mistake  to  what  is  really  be- 
lieved to  be  true,  however  unfounded  the  belief  may  be;  hence 
a  witness  may  contradict  under  oath  testimony  formally  given 
by  him  without  committing  perjury,  since  he  may  on  such  occa- 
sion have  believed  his  testimony  to  be  true. 

Where  a  form  of  oath  has  been  prescribed,  a  literal  follow- 
ing of  the  statute  is  not  essential.  It  is  sufficient  if  the  oath 
administered  conforms  in  substance  to  the  statutory  form. 

An  oath  includes  affirmation,  where  the  latter  is  authorized 
in  lieu  of  an  oath. 

It  is  no  defense  that  the  witness  voluntarily  appeared,  or 
that  he  was  an  incompetent  witness,  or  that  his  testimony 
was  given  in  response  to  questions  that  he  could  have  de- 
clined to  answer,  even  if  he  was  forced  to  answer  it  over  his 
claim  of  privilege. 

It  is  a  defense,  however,  if  the  tribunal  or  magistrate  had 
no  jurisdiction  of  the  cause  in  which  the  false  testimony  was 
given. 

The  false  testimony  must  be  material  to  the  issue  or  matter  of 
inquiry,  but  the  issue  or  matter  of  inquiry  may  be  a  collateral 
one.  The  issue  may  be  proved  by  that  part  of  the  record  of  trial 
showing  the  pleadings,  or  by  a  duly  authenticated  copy  thereof, 
or  by  a  properly  authenticated  copy  of  the  general  court-martial 
order  promulgating  the  proceedings  of  such  trial,  or  in  case  of 
the  loss  or  destruction  of  such  evidence  by  secondary  evidence 
thereof.  It  is  for  the  court  to  determine  whether  or  not  the 
perjured  testimony  was  in  fact  material  to  those  issues  properly 
established. 

To  constitute  perjury  an  oath  must  be  taken  under  or  required 
by  some  law  of  the  United  States.  A  voluntary  or  extrajudicial 
oath,  though  false,  is  not  perjury ;  neither  is  an  oath  taken  under 
a  departmental  regulation  for  the  enforcement  of  the  oleomar- 
garine law  (no  statute  authorizing  it) ;  but  where  the  depart- 
mental rules  requiring  the  affidavit  are  in  accord  with  the  re- 
quirements of  a  statute  a  false  affidavit  constitutes  perjury. 
(Van  Gesner  v.  United  States,  153  Fed.  Rep.,  46,  53.) 

The  authority  of  the  officer  who  administers  the  oath  upon 
which  perjury  is  predicated  is  sufficiently  alleged  by  stating  that 
such  officer  was  then  and  there  a  person  having  authority  to 
administer  such  oath.  A  notary  public  is  authorized  to  admin- 

434 


PUNITIVE  ARTICLES  OF  WAR.  ^[443 

ister  oaths  in  affidavits  required  by  the  Secretary  of  War  under 
the  act  of  March  3,  1863,  and  false  swearing  in  reference  to  facts 
so  required  is  perjury.  (United  States  v.  Sonachall,  27  Fed.  Gas., 
1259.) 

The  specification  need  not  allege  that  the  false  oath  was  taken 
deliberately  and  corruptly,  or  otherwise  than  as  indicated  by  the 
language  of  the  statute.  But  the  oath  must  be  willfully  taken. 
(United  States  v.  Edwards,  43  Fed.  Rep.,  67;  United  States  v. 
Lake,  129  Fed.  Rep.,  499,  502.)  And  the  fact  that  the  accused 
was  sworn  must  be  distinctly  stated. 

There  can  be  no  conviction  for  perjury  unless  the  false  oath 
or  affidavit  was  taken,  or  made  with  a  corrupt  intent,  and  this 
is  a  question  for  the  jury.  (United  States  v.  Smith,  27  Fed.  Cas., 
1175,  1183.) 

It  is  not  necessary  that  the  false  affidavit  should  have  been 
used.  (Noah  v.  United  States,  128  Fed.  Rep.,  270,  272.)  The 
unsupported  testimony  of  a  single  witness  is  insufficient  to  con- 
vict. (United  States  v.  Hall,  44  Fed.  Rep.,  864,  868.)  But  oral 
evidence  is  unnecessary  if  the  jury  believes  documentary  evi- 
dence. (United  States  v.  Wood,  14  Pet.,  430,  444.) 

NOTE. — For  false  swearing,  see  paragraph  446  II,  infra,  "  False 
swearing." 

PROOF. 

(a)  That  the  accused  took  an  oath  in  any  of  the  cases  pro- 
vided in  section  125,  Federal  Penal  Code,  1910,  as  alleged  in  the 
specification. 

(b)  That  such  oath  was  administered  by  a  person  having  au- 
thority to  do  so. 

(c)  That  upon  such  oath  accused  testified,  declared,  deposed, 
or  certified  as  alleged. 

(d)  That  such  testimony,  declaration,  deposition,  or  certificate 
was  false  and  material  to  the  inquiry  as  alleged. 

(e)  The  facts  and  circumstances  showing  that  such  testimony, 
declaration,  deposition,  or  certificate  was  taken  or  made  willfully 
with  a  corrupt  intent. 

NOTE  2. — Falsely  certifying  to  a  claim  or  document  under  the  War 
Eisk  Insurance  Act  (sec.  25,  as  amended  by  the  act  of  Oct.  6,  1917  (40 
Stat.  402)),  is  not  perjury  within  the  meaning  of  that  term  as  used 
in  the  ninety-third  article  of  war,  but  is  chargeable  under  A.  W.  96. 


435 


^[    443  CHAPTER  XVII. 

X.  Forgery. 

Forgery  is  not  defined  by  the  Federal  Penal  Code;  but  sec- 
tion 843  of  the  Code  of  the  District  of  Columbia  provides: 

Whoever,  with  intent  to  defraud  or  injure  another,  falsely  makes 
or  alters  any  writing  of  a  public  or  private  nature,  which  might 
operate  to  the  prejudice  of  another,  or  passes,  utters,  or  publishes,  or 
attempts  to  pass,  utter,  or  publish  as  true  and  genuine,  any  paper  so 
falsely  made  or  altered,  knowing  the  same  to  be  false  or  forged,  with 
the  intent  to  defraud  or  prejudice  the  right  of  another,  shall  be  im- 
prisoned for  not  less  than  one  year  nor  more  than  ten. 

This  statute  will  govern  courts-martial,  as  to  the  definition 
of  this  offense. 

Some  of  the  instruments  that  are  subjects  of  forgery  are 
checks,  indorsements,  orders  for  the  delivery  of  money  or 
goods,  railroad  tickets,  and  receipts. 

A  writing  falsely  made  includes  a  false  instrument  that 
is  in  part  or  entirely  printed,  engraved,  written  with  a  pencil, 
or  made  by  photography  or  other  device. 

A  writing  may  be  made  falsely  by  filling  in  a  paper  signed 
in  blank,  or  by  signing  an  instrument  already  written. 

The  writing  must  be  false — must  purport  to  be  what  it 
is  not. 

Thus,  signing  another's  name  to  a  check  with  intent  to 
defraud  is  forgery,  as  the  instrument  purports  on  its  face  to 
be  what  it  is  not.  But  where,  after  the  false  signature  of  such 
person  is  added  the  word  by,  and  the  signature  of  the  person 
making  the  check,  thus  indicating  an  authority  to  sign,  the 
offense  is  not  forgery  even  if  no  such  authority  exists,  as  the 
check  on  its  face  is  what  it  purports  to  be. 

Forgery  may  be  committed  by  signing  one's  own  name  to 
an  instrument.  Thus,  where  a  check  payable  to  the  order 
of  a  certain  person  comes  into  the  hands  of  another  of  the 
same  name,  he  commits  forgery,  when,  knowing  the  check 
to  be  another's,  he  indorses  it  with  his  own  name,  intending 
to  defraud. 

Forgery  may  also  be  committed  by  signing  a  fictitious 
name,  as  where  a  person  signs  a  check  payable  to  himself  with 
a  fictitious  name ;  but  when  he  passes  a  check  signed  by  him 
with  a  fictitious  name,  credit  being  extended  to  him  without 
regard  to  his  name,  forgery  is  not  committed. 


436 


PUNITIVE  ARTICLES  OF  WAR.  ^f    443 

To  constitute  a  forgery  the  instrument  must  have  apparent 
legal  efficacy.  The  fraudulent  making  of  an  instrument 
affirmatively  invalid  on  its  face  is  not  a  forgery.  But  this 
requirement  does  not  ordinarily  prevent  the  fraudulent  mak- 
ing of  a  signature  on  a  check,  for  instance,  from  being  a 
forgery  even  if  there  be  no  resemblance  to  the  genuine  signa- 
ture and  the  name  is  misspelled. 

The  false  writing  must  be  made  with  intent  to  defraud  or 
injure  another.  A  person  who  signs  another's  name  to  an 
instrument  believing  that  he  has  authority  to  do  so  does  not 
commit  a  forgery. 

It  is  immaterial,  however,  that  anyone  be  actually  de- 
frauded or  injured,  or  that  no  further  step  be  made  toward 
carrying  out  the  intent  to  defraud  than  the  making  of  the 
false  writing. 

Analysis   and  Proof. 

Section  843  of  the  Code  of  the  District  of  Columbia  defines 
four  crimes: 

I.  Falsely  making  a  writing. 

II.  Falsely  altering  a  writing. 

III.  Uttering  a  paper  falsely  made  or  falsely  altered. 

IV.  Attempting  to   utter  a   paper   falsely   made   or  falsely 
altered. 

PROOF. 
I.   Falsely  M«kingr  a  Writing. 

(a)  That  a  certain  writing  was  falsely  made,  as  alleged  in 
the  specification.     (The  instrument  itself  should  be  produced,  if 
available.) 

(b)  That  such  writing  was  of  a  nature  which  might  operate 
to  the  prejudice  of  another.    (This  will  usually,  but  not  always, 
appear  from  the  face  of  the  paper  itself.) 

(c)  That  it  was  the  accused  who  so  falsely  made  it. 

(d)  The  facts  and  circumstances  of  the  case,  as  alleged  in  the 
specification,  indicating  the  intent  of  the  accused  thereby  to 
either,  as  the  case  may  be,  (1)  defraud  or  (2)  injure  another 
certain  person. 

IT.   Falsely  Altering:  a  Writing-. 

(a)  That  a  certain  writing  was  falsely  altered,  as  alleged  in 
the  specification.  (The  instrument  itself  should  be  produced,  if 
available.) 

437 


^[443  CHAPTER  XVII. 

(b)  That  such  writing  was  of  a  nature  which  might  operate 
to  the  prejudice  of  another.    (This  will  usually,  hut  not  always, 
appear  from  the  face  of  the  paper  itself.) 

(c)  That  it  was  the  accused  who  so  falsely  altered  it. 

(d)  The  facts  and  circumstances  of  the  case,  as  alleged  in  the 
specification  indicating  the  intent  of  the  accused  tKejeby  to,  as 
the  case  may  be,   (1)   defraud  or  (2)  injure  another  certain 
person. 

III.   Uttering  a  Paper  Falsely  Made  or  Falsely  Altered. 

(a)  That,  as  alleged  in  the  specification,  a  certain  paper  was 
(1)  falsely  made  or  (2)  falsely  altered.     (The  instrument  itself 
should  be  produced,  if  available.) 

(b)  That  such  writing  was  of  a  nature  which  might  operate 
to  the  prejudice  of  another.    (This  will  usually,  but  not  always, 
appear  from  the  face  of  the  paper  itself.) 

(c)  That  the  accused,  as  alleged  in  the  specification,  passed  or 
uttered  or  published  such  paper  as  true  and  genuine. 

(d)  That  the  accused,  when  so  doing,  knew  said  paper  to  have 
been  falsely  made  or  falsely  altered  as  alleged  in  the  specifi- 
cation. 

(e)  The  facts  and  circumstances  of  the  case  indicating  the  in- 
tent of  the  accused  in  so  doing  to  either  (1)  defraud  or  (2)  preju- 
dice the  right  of  a  certain  other  person,  as  alleged  in  the  speci- 
fication. 

IV.  Attempting:   to  Utter  a  Paper  Falsely  Made   or  Falsely  Altered. 

(a)  That,  as  alleged  in  the  specification,  a  certain  paper  was 
(1)  falsely  made  or  (2)  falsely  altered.     (The  instrument  itself 
should  be  produced,  if  available.) 

(b)  That  such  writing  was  of  a  nature  which  might  operate 
to  the  prejudice  of  another.    (This  will  usually,  but  not  always, 
appear  from  the  face  of  the  paper  itself.) 

(c)  The  facts  and  circumstances  of  the  case  showing  that,  as 
alleged  in  the  specification,  the  accused  attempted  to  pass  or  utter 
or  publish  such  paper  as  true  and  genuine. 

(d)  That  the  accused,  when  so  doing,  knew  said  paper  to  have 
been  falsely  made  or  falsely  altered,  as  alleged  in  the  specification. 

(e)  The  facts  and  circumstances  of  the  case  indicating  the  in- 
tent of  the  accused  in  so  doing  to  either  (1)  defraud  or  (2)  preju- 
dice the  right  of  a  certain  other  person,  as  alleged  in  the  speci- 
fication. 


PUNITIVE  AKTICLES  OF  WAR.  ^f    443 

XI.  Sodomy. 

Neither  the  Federal  Penal  Code  nor  the  Code  of  the  District  of 
Columbia  defines  sodomy.  Courts-martial  are  therefore  governed 
by  the  common-law  definition  of  this  offense. 

Sodomy  at  common  law  consists  in  sexual  connection  with 
any  brute  animal,  or  in  sexual  connection,  per  anum,  by  a  man 
with  any  man  or  woman.  (Wharton,  vol.  1,  p.  965.) 

Penetration  of  the  mouth  of  the  person  also  constitutes  this 
offense. 

Both  parties  are  liable  as  principals  if  each  is  adult  and 
consents ;  but  if  either  be  a  boy  of  tender  age  the  adult  alone 
is  liable,  and  although  the  boy  consent  the  act  is  still  by  force. 

Penetration  alone  is  sufficient. 

An  assault  with  intent  to  commit  this  offense  consists  of 
an  assault  on  a  human  being  with  intent  to  penetrate  his  or 
her  person  per  anum. 

That  which  has  been  before  stated,  with  regard  to  the  evi- 
dence and  manner  of  proof  in  cases  of  rape,  ought  especially 
to  be  observed  upon  a  trial  for  this  heinous  offense.  When 
strictly  and  impartially  proved  the  offense  well  merits  strict 
and  impartial  punishment ;  but  it  is  from  its  nature  so  easily 
charged  and  the  negative  so  difficult  to  be  proved  that  the  ac- 
cusation ought  clearly  to  be  made  out.  The  evidence  should 
be  plain  and  satisfactory  in  proportion  as  the  crime  is  detest- 
able.— 4  Bl.  Com.,  215  (Archbold's  Criminal  Practice  and 
Pleading,  8th  ed.,  vol.  1,  p.  1016.) 

PROOF. 

That  the  accused  had  sexual  connection  with  a  certain  brute 
animal,  or  had  sexual  connection  per  anum,  or  by  the  mouth, 
with  a  certain  man  or  woman,  as  the  case  may  be,  as  alleged  in 
the  specification. 

XII.  ASSAULT  WITH  INTENT  TO  COMMIT  ANY  FELONY. 

An  assault  with  intent  to  commit  any  felony  is  an  assault 
made  with  a  specific  intent  to  murder,  rape,  rob,  or  to  commit 
manslaughter,  sodomy,  or  other  common-law  or  statutory 
felony. 


439 


CHAPTER  xvn. 

An  assault  is  an  attempt  or  offer  with  unlawful  force  or 
violence  to  do  a  corporal  hurt  to  another.  (Clark  and  Mar- 
shall, p.  271.) 

Raising  a  stick  over  another's  head  as  if  to  strike  him,  pre- 
senting a  firearm  ready  for  use  within  range  of  another,  strik- 
ing at  another  with  a  cane  or  fist,  assuming  a  threatening  atti- 
tude and  hurrying  toward  another,  are  examples  of  assaults. 

Some  overt  act  is  necessary  in  any  assault.  Mere  prepara- 
tion, such  as  unfastening  the  catch  on  a  pistol  holster  in  order 
that  the  pistol  may  be  drawn,  or  picking  up  a  stone  at  a  con- 
siderable distance  from  another  without  making  any  attempt 
or  offer  to  throw  it,  is  not  an  assault. 

The  force  or  violence  must  be  physical ;  mere  words,  how- 
ever threatening,  or  insulting  gestures  are  not  by  themselves 
sufficient  to  constitute  an  assault. 

Furthermore,  in  an  assault  there  must  be  an  intent,  actual 
or  apparent,  to  inflict  corporal  hurt  on  another. 

Where  the  circumstances  known  to  the  person  menaced 
clearly  negative  such  intent  there  is  no  assault.  Thus,  where 
a  person  accompanies  an  apparent  attempt  to  strike  another 
by  an  unequivocal  announcement  in  some  form  of  his  inten- 
tion not  te  strike,  there  is  no  assault.  This  principle  was  ap- 
plied in  a  case  where  the  defendant  raised  his  whip  and  shook 
it  at  the  prosecutor  within  striking  distance  saying,  "  If  you 
weren't  an  old  man,  I  would  knock  you  down." 

Viewed  solely  as  an  attempt  to  commit  a  battery  there  must 
be  an  actual  or  constructive  intent  to  do  a  corporal  hurt  to 
another,  and  an  act  of  unlawful  violence  or  force  begun  to  be 
executed  with  a  view  to  inflicting  such  hurt.  How  such  pur- 
pose is  defeated  is  immaterial. 

The  following  have  been  held  to  be  assaults :  Riding  after  a 
person  so  as  to  compel  him  to  seek  safety  in  an  inclosure  to 
avoid  a  beating,  though  the  assailant  was  never  near  enough 
to  hit  him;  rushing  upon  another  in  a  threatening  attitude 
although  before  quite  close  enough  to  strike,  the  person 
threatened  strikes  in  self-defense  or  the  attack  is  frustrated 
by  a  third  person. 

It  is  also  an  assault  where  the  person  in  order  to  avert  the 
taking  effect  of  the  unlawful  violence  yields  to  a  demand  of 


440 


PUNITIVE  ARTICLES  OF  WAR.  If    443 

his  assailant.  Thus,  where  A,  being  within  striking  distance 
of  B,  raises  a  weapon  for  the  purpose  of  unlawfully  striking 
him,  stating  that  he  will  strike  unless  B  does  a  certain  thing, 
and  B  does  that  thing,  thereby  averting  the  blow,  A  commits 
an  assault. 

It  is  not  a  defense  to  a  charge  of  assault  that  for  some 
reason  unknown  to  the  assailant  his  attempt  was  bound  to  fail. 
Thus,  where  a  soldier  loads  his  rifle  with  what  he  believes  to 
be  a  good  cartridge  and,  pointing  it  at  a  person,  pulls  the 
trigger,  he  is  guilty  of  assault  although  the  cartridge  was  so 
defective  that  it  could  not  be  used.  The  same  principle  was 
applied  to  a  case  where  a  person  in  a  house  shoots  through 
the  roof  at  a  place  where  he  supposed  a  policeman  was  con- 
cealed, though  the  policeman  was  at  another  place  on  the 
roof. 

The  intent  need  not  be  to  injure  a  particular  person,  and 
mere  recklessness  may  supply  the  place  of  intent.  Thus, 
where  one  strikes  at  A  believing  him  to  be  B,  he  is  guilty  of 
assaulting  A ;  and  where  one  fires  a  loaded  and  capped  pistol 
at  another  recklessly,  and  not  knowing  or  seeking  to  know 
whether  it  is  loaded  or  not,  he  commits  an  assault. 

To  constitute  an  assault,  however,  it  is  unnecessary  that 
there  be  an  actual  or  constructive  intent  to  hurt  anyone  or  a 
believed  ability  to  inflict  such  hurt 

If  there  be,  to  the  person  set  upon,  an  apparent  present  in- 
tent to  injure,  coupled  with  an  apparent  present  ability  to  do 
so,  it  is  sufficient. 

The  better  opinion,  however,  is  to  the  effect  that  if  a  person 
presents  a  gun  at  another,  or  threatens  him  with  a  stick  or 
other  weapon,  and  thereby  reasonably  puts  him  in  fear  and 
causes  him  to  act  on  the  defensive,  or  to  retreat,  there  is  an 
assault,  whether  there  is  any  actual  intention  to  injure  or  not. 
In  a  comparatively  late  Massachusetts  case  it  was  held  that  a 
man  who  pointed  an  unloaded  gun  at  another  was  guilty  of 
an  assault,  although  he  may  have  known  that  it  was  not 
loaded  and  may  have  had  no  intention  to  injure.  "  It  is  not 
the  secret  intent  of  the  assaulting  party,"  said  the  court,  "  nor 
the  undisclosed  fact  of  his  ability  or  inability  to  commit  a 


441 


If    443  CHAPTER  XVII. 

battery,  that  is  material,  but  what  his  conduct  and  the  attend- 
ing circumstances  denote  at  the  time  to  the  party  assaulted. 
If  t©  him  they  indicate  an  attack,  he  is  justified  in  resorting 
to  defensive  action.  The  same  rule  applies  to  the  proof  neces- 
sary to  sustain  a  criminal  complaint  for  an  assault.  It  is  the 
outward  demonstration  that  constitutes  the  mischief  which  is 
punished  as  a  breach  of  the  peace."  (Clark  and  Marshall, 
pp.  277,  278.) 

If  there  be  such  a  demonstration  of  violence,  coupled  with 
an  apparent  ability  to  inflict  the  injury,  so  as  to  cause  the 
person  at  whom  it  is  directed  reasonably  to  fear  the  injury 
unless  he  retreat  to  secure  his  safety,  and  under  such  cir- 
cumstances he  is  compelled  to  retreat  to  avoid  any  impending 
danger,  the  assault  is  complete,  though  the  assailant  may 
never  have  been  within  the  actual  striking  distance  of  the 
person  assailed.  (Clark  and  Marshal,  p.  281,  note.) 

There  must,  however,  be  an  apparent  present  ability.  To 
aim  a  pistol  at  a  man  at  such  a  distance  that  it  clearly  could 
not  injure  would  not  be  an  assault. 

A  battery  is  an  assault  in  which  force  is  applied,  by  ma- 
terial agencies,  to  the  person  of  aiiother,  either  mediately  or 
immediately.  Thus,  it  is  a  battery  to  spit  on  another ;  to  push 
a  third  person  against  him ;  to  set  a  dog  at  him  which  bites 
him ;  to  cut  his  dress  while  he  is  wearing  it,  though  without 
touching  or  intending  to  touch  his  person ;  to  shoot  him ;  and 
to  cause  him  to  take  poison.  So  it  is  a  battery  for  a  man  to 
fondle  against  her  will  a  woman  not  his  wife.  The  force  may 
be  applied  through  conductors  more  or  less  close.  Thus,  to 
strike  the  dress  of  the  person  assailed,  or  the  horse  on  which 
he  is  riding,  or  the  house  in  which  he  resides,  may  be  as  much 
a  battery  as  to  strike  his  face ;  and  sending  an  explosive  ma- 
chine by  express  from  New  York  to  San  Francisco  may  be  as 
much  a  battery  as  taking  it  to  San  Francisco  in  person.  It 
is  not,  however,  a  battery  to  lay  hands  on  another  to  attract 
his  attention,  or  in  a  party  falling  to  seize  another  for  sup- 
port. Sending  a  missile  into  a  crowd  also  is  a  battery  on  any- 
one whom  the  missile  hits ;  and  so  is  the  use,  on  the  part  of 
one  who  is  excused  in  using  force,  of  more  force  than  is 
required. 


442 


PUNITIVE  ARTICLES  OF  WAR.  ^f   443 

1.  ASSAULT  WITH  INTENT  TO  MUEDEB. 

This  is  an  assault  aggravated  by  the  eoncurrence  of  a 
specific  intent  to  murder ;  in  other  words,  it  is  an  attempt  to 
murder. 

As  in  other  attempts  there  must  be  an  overt  act,  beyond 
mere  preparation  or  threats,  or  an  attempt  to  make  an  at- 
tempt. 

Thus,  it  was  held  not  an  assault  with  intent  to  murder 
where  the  defendant  drew  a  pistol  from  his  hip  pocket,  but 
because  of  its  becoming  caught  in  the  lining  of  his  coat,  did 
not  make  any  actual  attempt  to  inflict  an  injury  with  the 
pistol  on  the  person  alleged  to  have  been  assaulted. 

To  constitute  an  assault  with  intent  to  murder  by  firearms 
it  is  not  necessary  that  the  weapon  be  discharged ;  and  in  no 
case  is  the  actual  infliction  of  injury  necessary.  Thus,  where 
a  man  with  intent  to  murder  another  deliberately  assaults 
him  by  shooting  at  him,  the  fact  that  he  misses  does  not  alter 
the  character  of  the  offense. 

Where  the  intent  to  murder  exists,  the  fact  that  for  some 
reason  unknown  the  actual  consummation  of  the  murder  is 
impossible  by  the  means  employed  does  not  prevent  the  per- 
son using  them  from  being  guilty  of  an  assault  with  intent  to 
commit  murder  where  the  means  are  apparently  adapted  to 
the  end  in  view.  Thus,  where  a  soldier  intending  to  murder 
another  loads  his  rifle  with  what  he  believed  to  be  a  good 
cartridge  and  aims  and  discharges  his  rifle  at  the  other,  it  is 
no  defense  that  he,  by  accident,  got  hold  of  a  cartridge  so 
defectively  loaded  that  the  bullet  did  not  leave  the  gun. 

In  order  to  constitute  this  offense  the  specific  intent  to 
murder  must  exist,  and  the  facts  must  be  such  that  had 
death  been  caused  by  the  act  the  offense  would  have  been 
murder,  but  the  converse  of  this  latter  proposition  is  not 
always  true,  as  a  man  may  be  guilty  of  murder  without  in- 
tending to  kill.  Thus,  where  a  workman  recklessly  throws 
a  heavy  object  from  the  roof  of  a  building  into  a  street  where 
he  knows  people  are  likely  to  be  passing  and  thereby  kills  a 
person,  he  may  be  guilty  of  murder ;  but  where  the  person  is 
merely  injured,  the  offense  of  assault  with  intent  to  commit 
murder  is  not  committed. 


443 


^[443  CHAPTER  XVII. 

To  constitute  this  offense  there  must  be  a  specific  intent  to 
murder  the  person  assaulted  and  this  intent  must  exist  at  the 
time  of  the  assault. 

A  general  felonious  intent  of  a  specific  design  to  commit 
another  felony  is  not  sufficient,  and  where  a  person  is  too 
drunk  to  entertain  the  specific  intent  the  offense  is  not 
murder.  But  where  the  accused  intending  to  murder  A 
shoots  at  and  wounds  B,  mistaking  him  for  A,  he  is  guilty  of 
assaulting  B  with  intent  to  murder  him ;  so  also  where  a  man 
fires  into  a  group  with  intent  to  murder  some  one  he  is 
guilty  of  an  assault  with  intent  to  murder  each  member  of 
the  group. 

2.  ASSAULT  WITH  INTENT  TO  COMMIT  MANSLAUGHTER. 

This  offense  differs  from  assault  with  intent  to  murder  in 
the  lack  of  the  elements  of  malice  necessary  to  constitute  the 
latter  crime. 

It  is  an  attempt  to  take  human  life  in  a  sudden  heat  of  pas- 
sion. 

The  specific  intent  to  kill  is  necessary  and  the  act  must  be 
done  under  such  circumstances  that  had  death  ensued  the 
offense  would  have  been  manslaughter. 

What  has  been  said  under  the  head  of  assault  with  intent 
to  commit  murder  applies  to  the  offense  of  assault  with  intent 
to  commit  manslaughter. 

3.  ASSAULT  WITH  INTENT  TO  COMMIT  RAPE. 

This  is  an  attempt  to  commit  rape  in  which  the  overt  act 
amounts  to  an  assault  upon  the  woman  intended  to  be  rav- 
ished. Indecent  advances,  importunities  however  earnest; 
mere  threats;  and  actual  attempts  to  rape  wherein  the  overt 
act  is  not  an  assault  do  not  amount  to  this  offense.  Thus, 
where  a  man,  intending  to  rape  a  woman,  stealthily  concealed 
himself  in  her  room  to  await  a  favorable  opportunity  to  exe- 
cute his  design  but  was  discovered  and  fled,  it  was  held  that 
he  was  not  guilty  of  an  assault  with  intent  to  commit  rape. 

No  actual  touching  is  necessary.  Thus  where  a  man  entered 
a  woman's  room  and  got  in  the  bed  where  she  was  and  within 


444 


PUNITIVE  ARTICLES   OF  WAR.  If    443 

reach  of  her  person  for  the  purpose  of  raping  her  he  commits 
the  offense,  although  he  did  not  touch  the  woman. 

This  offense  may  be  committed  on  a  woman  who  is  insane 
or  an  imbecile,  or  while  she  is  drugged  or  intoxicated,  or 
asleep,  provided  the  offense  would  be  rape  if  the  purpose  was 
carried  out.  But  an  attempt  to  have  connection  with  a  woman 
capable  of  consenting  and  whose  consent  thereto  has  been  ob- 
tained by  fraud  is  not  an  assault  with  intent  to  commit  rape. 

1  hus  an  attempt  to  have  connection  with  a  woman  who  has 
consented  thereto  in  the  belief  that  one  personating  her 
husband  is  her  husband  can  not  be  an  assault  with  intent  to 
commit  rape. 

The  intent  to  have  carnal  knowledge  of  the  woman  assaulted 
by  force  and  without  her  consent  must  exist  and  concur  with 
the  assault.  In  other  words,  the  man  must  intend  to  over- 
come any  resistance  by  force,  actual  or  constructive,  and 
penetrate  the  woman's  person.  Any  less  intent  will  not  suffice. 
Thus  where  a  man  assaults  a  woman,  his  purpose  being  to 
seduce  her,  the  offense  is  not  committed. 

Once  an  assault  with  intent  to  commit  rape  is  made,  it  is 
no  defense  that  the  man  voluntarily  desisted  or  that  the 
woman  yields  her  consent  to  the  connection,  so  that  no  rape 
is  committed. 

4.  ASSAULT  WITH  INTENT  TO  ROB. 

This  is  an  attempt  to  commit  robbery  wherein  the  overt  act 
is  an  assault  and  the  concurrent  intent  is  forcibly  to  take  and 
carry  away  property  of  the  person  assaulted  from  his  per- 
son or  in  his  presence  by  violence  or  putting  him  in  fear. 

The  accused  can  not  set  up  as  a  defense  that  he  intended  to 
take  only  money  and  that  the  person  he  attempted  to  rob  had 
none. 

5.   Assault  with  Intent  to  Commit  Sodomy. 

For  definition  of  sodomy,  see  Division  XI  of  this  paragraph, 
"  sodomy,"  supra. 

For  definition  of  assault,  see  supra,  this  Division  XII  of  this 
paragraph. 

The  assault  must  be  against  a  human  being,  and  must  be  with 
the  specific  intent  to  commit  sodomy.  Any  less  intent,  or  differ- 


445 


If   443  CHAPTER  XVII. 

cnt  intent,  will  not  suffice.  (Compare,  as  to  the  requirements 
of  the  intent,  which  must  be  proved,  the  preceding  subdivision! 
of  this  division  of  this  paragraph.) 

PEOOF. 

(1)  Assault  with  intent  to  murder: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(5)  The  facts  and  circumstances  of  the  case  indicating 
the  existence  at  the  time  of  the  assault  of  the  specific  intent 
of  the  accused  to  kill  such  person  and  that  the  killing  would 
have  been  murder  had  death  resulted. 

NOTE. — Both  the  specific  intent  and  the  malice  may  be  inferred  from 
the  deliberate  use  of  a  deadly  weapon  in  a  way  calculated  to  cause 
death,  or  from  other  deliberate  acts  of  violence  likely  to  result  in  death 
or  great  bodily  harm. 

(2)  Assault  with  intent  to  commit  manslaughter: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(£>)  The  facts  and  circumstances  of  the  case  indicating 
the  existence  at  the  time  of  the  assault  of  the  specific  intent 
of  the  accused  to  kill  such  person  and  that  the  killing  would 
have  been  voluntary  manslaughter  had  death  resulted. 

(3)  Assault  with  intent  to  commit  rape : 

(a)  That  the  accused  assaulted  a  certain  female,  as  speci- 
fied. 

(b)  The  facts  and  circumstances  of  the  case  indicating  the 
existence  at  the  time  of  the  assault  of  the  intent  of  the  accused 
to  penetrate  the  person  of  such  female  at  all  events  by  over- 
coming any  resistance  on  her  part  by  actual  or  constructive 
force;  and  the  facts  and  circumstances  indicating  that  the 
offense  of  rape  would  have  been  committed  had  the  accused 
succeeded  in  carrying  out  his  purpose. 

(4)  Assault  with  intent  to  rob: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(b)  The  facts  and  circumstances  of  the  case  indicating  the 
existence  at  the  time  of  the  assault  of  the  intent  on  the  part 
of  the  accused  forcibly  to  steal  property  of  such  person  from 
his  person  or  in  his  presence  by  violence  or  putting  him  in 
fear. 


446 


PUNITIVE  ARTICLES   OF  WAR.  ^f    443 

(5)  Assault  with  intent  to  commit  sodomy: 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(b)  The  facts  and  circumstances  of  the  case  indicating  the 
concurrent  intent  to  commit  the  offense  on  such  person. 

XIII.  Assault    with    intent    to    do    bodily    harm    with    a    dangerous 
weapon,  instrument,  or  other  thing. 

The  offense  denounced  in  this  article  as  an  assault  with  intent 
to  do  bodily  harm  with  a  dangerous  weapon,  instrument,  or  other 
thing  was,  by  Congress,  meant  to  describe  the  offense  of  that 
nature,  denounced  in  section  276,  Federal  Penal  Code  of  1910,  as 
follows : 

Whoever,  with  intent  to  do  bodily  harm,  and  without  just  cause  or 
excuse,  shall  assault  another  with  a  dangerous  weapon,  instrument, 
or  other  thing-  shall  be  fined  not  more  than  one  thousand  dollars 
or  imprisoned  not  more  than  five  years,  or  both. 

Weapons,  etc.,  are  dangerous  when  they  are  used  in  such  a 
manner  that  they  are  likely  to  produce  death  or  great  bodily 
harm.  Mere  capability  of  being  so  used  is  not  enough. 

Boiling  water  may  be  so  used  as  to  be  a  dangerous  thing,  and 
a  pistol  may  be  so  used  as  not  to  be  a  dangerous  weapon. 

PROOF. 

(a)  That  the  accused  assaulted  a  certain  person  with  a  certain 
weapon,  instrument,  or  thing. 

(b)  The  facts  and  circumstances  of  the  case  indicating  that 
such  weapon,  instrument,  or  thing  was  used  in  a  manner  likely  to 
produce  death  or  great  bodily  harm. 

(c)  The  facts  and  circumstances  of  the  case  indicating  that 
the  assault  was  without  just  cause  or  excuse. 

XIV.    ASSAULT  WITH  INTENT  TO  DO  BODILY  HARM. 

This  is  an  assault  aggravated  by  the  specific  present  intent 
to  do  bodily  harm  to  the  person  assaulted  by  means  of  the 
force  employed. 

It  is  not  necessary  that  any  battery  actually  ensue,  or,  if 
bodily  harm  is  actually  inflicted,  that  it  be  of  the  kind 
intended.  Where  the  accused  acts  in  reckless  disregard  for 
the  safety  of  others  it  is  not  a  defense  that  he  did  not  have 
in  mind  the  particular  person  injured. 

21358°— 20— 29 

447 


If  444  CHAPTEB  xvru 

PEOOF. 

(a)  That  the  accused  assaulted  a  certain  person,  as  alleged. 

(&)  The  facts  and  circumstances  of  the  case  indicating  the 

concurrent  intent  thereby  to  do  bodily  harm  to  such  person. 

444.  Ninety -fourth  Article  of  War: 

[1]  Any  person  subject  to  military  law  who  makes  or  causes  to  be 
made  any  claim  ngjiinst  the  United  States,  or  any  officer  thereof, 
knowing;  such  claim  to  be  false  or  fraudulent;  or 

[2]  "Who  presents  or  causes  to  be  presented  to  any  person  in 
the  civil  or  military  service  thereof,  for  approval  or  payment, 
any  claim  against  the  United  States,  or  any  officer  thereof,  know- 
ing? such  claim  to  be  false  or  fraudulent;  or 

[3]  Who  enters  into  any  agreement  or  conspiracy  to  defraud 
the  United  States  by  obtaining:,  or  aiding;  others  to  obtain,  the 
allowance  or  payment  of  any  false  or  fraudulent  claim;  or 

[4]  Who,  for  the  purpose  of  obtaining,  or  aiding;  others  to 
obtain,  the  approval,  allowance,  or  payment  of  a-ny  claim 
against  the  United  States  or  against  any  officer  thereof,  makes 
or  uses,  or  procures,  or  advises  the  making;  or  use  of,  any  writ- 
ing: or  other  paper,  knowing;  the  same  to  contain  any  false  or 
fraudulent  statements;  or 

[5]  Who,  for  the  purpose  of  obtaining,  or  aiding*  others  to 
obtain,  the  approval,  allowance,  or  payment  of  any  claim 
agrainst  the  United  States  or  any  officer  thereof,  makes  or  pro- 
cures, or  advises  the  making;  of,  any  oath  to  any  fact  or  to  any 
writing:  or  other  paper  knowing:  such  oath  to  be  false;  or 

[6]  Who,  for  the  purpose  of  obtaining:,  or  aiding;  others  to 
obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  any  officer  thereof,  forges  or  coun- 
terfeits, or  procures,  or  advises  the  forging:  or  counterfeiting:  of 
any  signature  upon  any  writing:  or  other  paper,  or  uses,  or  pro- 
cures, or  advises  the  use  of  any  such  signature,  knowing;  the 
same  to  be  forged  or  counterfeited;  or 

[7]  Who,  having:  charge,  possession,  custody,  or  control  of  any 
money  or  other  property  of  the  United  States,  furnished  or  in- 
tended for  the  military  service  thereof,  knowingly  delivers,  or 
causes  to  be  delivered,  to  any  person  having  authority  to  receive 
the  same,  any  amount  thereof  less  than  that  for  which  he  re- 
ceives a  certificate  or  receipt;  or 

[8]  Who,  being  authorized  to  make  or  deliver  any  paper  cer- 
tifying the  receipt  of  any  property  of  the  United  States  furnished 
or  intended  for  the  military  service  thereof,  makes  or  delivers 
to  any  person  such  •writing,  without  having  full  knowledge  of 
the  truth  of  the  statements  therein  contained  and  with  intent  to 
defraud  the  United  States;  or 

[9]  Who  steals,  embezzles;  knowingly  and  willfully  misappro- 
priates, applies  to  his  own  use  or  benefit,  or  wrongfully  or 
knowingly  sells  or  disposes  of  any  ordnance,  arms,  equipments, 
HIII munition,  clothing,  subsistence  stores,  money,  or  other  prop- 
erty of  the  United  States  furnished  or  intended  for  the  military 
service  thereof;  or 

[1O]  Who  knowingly  purchases  or  receives  in  pledge  for  any 
obligation  or  indebtedness  from  any  soldier,  officer,  or  other 
person  who  Is  a  part  of  or  employed  1m  said  force*  or  aerviee. 


448 


PUNITIVE  ARTICLES   OF  WAR.  If    444 

any  ordnance,  arms,  equipment,  ammunition,  clothing:,  sr«bsist- 
ence  stores,  or  other  property  of  the  United  States,  such  soldier, 
•nicer,  or  other  person  not  having:  lawful  right  to  sell  or  pledge 
the  same: 

Shall,  on  conviction  thereof,  he  punished  hy  fine  or  imprison- 
ment, or  by  snch  other  punishment  as  a  coiirt-martial  may  ad- 
judge, or  by  any  or  all  of  said*  penalties.  And  if  any  person, 
being:  guilty  of  any  of  the  offenses  aforesaid  while  in  the  mili- 
tary service  of  the  United  States,  receives  his  discharge  or  is 
dismissed  from  the  service,  he  shall  continne  to  be  liable  to  be 
arrested  and  held  for  trial  and  sentence  by  a  court-martial  in 
the  same  manner  and  to  the  same  extent  as  if  he  had  not 
received  such  discharge  nor  been  dismissed. 

[11]  And  if  any  officer,  being  guilty,  while  in  the  military  service 
•f  the  United  States,  of  embezzlement  of  ration  savings,  post  ex- 
ciiange,  company,  or  other  like  funds,  or  of  embezzlement  of 
money  or  other  property  intrnsted  to  his  charge  by  an  enlisted 
man  or  men,  receives  his  discharge,  or  is  dismissed,  or  is  dropped 
from  the  rolls,  he  shall  continue  to  be  liable  to  be  arrested  and 
held  for  trial  and  sentence  by  a  court-martial  in  the  same  man- 
ner and  to  the  same  extent  as  if  he  had  not  been  so  discharged, 
dismissed,  or  dropped  from  the  rolls. 

DEFINITIONS  AND  PRINCIPLES. 

See  the  respective  headings  under  which  the  offenses  de- 
fined by  this  article  are  treated  below. 

ANALYSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law, 
except  that  the  last  sentence  is  applicable  solely  to  an  officer  who 
has  been  in  the  military  service  of  the  TJnited  States.  See  ar- 
ticle 2. 

The  article  embraces  a  large  number  of  offenses  which  may 
be  treated  under  headings,  corresponding  to  the  paragraphs 
of  the  article,  as  follows : 

I.  Making  or  causing  to  be  made  a  false  or  fraudulent 
claim. 

II.  Presenting  or  causing  to  be  presented  for  approval  or 
payment  a  false  or  fraudulent  claim. 

III.  Entering  into  an  agreement  or  conspiracy  to  defraud 
the  United  States  through  false  claims. 

IV.  Making,  using,  procuring,  or  advising  the  making  or 
use  of  a  false  writing  or  other  paper  in  connection  with 
claims. 


449 


TJ    444  CHAPTER  XVII. 

V.  False  oath  in  connection  with  claims. 

VI.  Forgery,  etc.,  of  signature  in  connection  with  claims. 

VII.  Delivering  less  than  amount  called  for  by  receipt. 

VIII.  Making  or  delivering  receipt  without  having  knowl- 
edge that  the  same  is  true. 

.  IX.  Embezzlement,  misappropriation,  sale,  etc.,  of  mili- 
tary property. 

X.  Purchasing  or  receiving  in  pledge  of  military  property. 

XI.  Former  officer  guilty,  while  he  was  in  service,  of  embezzle- 
ment of  ration  savings,  post  exchange,  company,  or  other  like 
funds,  or  of  money  or  other  property  entrusted  to  him  by  enlisted 
man. 

I.    MAKING   OR    CAUSING   TO   BE 'MADE   A   FALSE    OR   FRAUDULENT 

CLAIM. 

Making  a  claim  is  a  distinct  act  from  presenting  it.  A 
claim  may  be  made  in  one  place  and  presented  in  another. 
This  section  does  not  relate  to  personal  claims  against  an 
officer  of  the  United  States,  but  to  claims  against  the  United 
States  made  to  such  officer  or  otherwise.  It  is  not  necessary 
that  the  claim  be  allowed  or  paid  nor  that  it  be  made  by  the 
person  to  be  benefited  by  the  allowance  or  payment.  The 
claim  must  be  made  or  caused  to  be  made  with  knowledge  of 
its  fictitious  or  dishonest  character.  This  does  not  include 
claims,  however  groundless  they  may  be,  that  are  honestly  be- 
lieved by  the  maker  to  be  valid,  nor  claims  that  are  merely 
made  negligently  or  without  ordinary  prudence,  but  it  does 
include  claims  made  by  a  person  who  has  the  belief  of  the 
false  character  of  the  claim  that  the  ordinarily  prudent  man 
would  have  entertained  under  the  circumstances.  (See  also 
the  discussion  under  "  II "  of  this  article.) 

An  instance  of  making  a  false  claim  would  be  where  an 
officer  having  a  claim  respecting  property  lost  in  the  military 
service  knowingly  includes  articles  that  were  not  in  fact  lost 
and  submits  such  claim  to  his  commanding  officer  for  the 
action  of  the  board. 


450 


PUNITIVE  ARTICLES  OF   WAK,  ^f    444 

PHOOF. 

(ct)  That  the  accused  made  or  caused  to  be  made  a  certain 
claim  against  the  United  States,  as  alleged. 

(b)  That  such  claim  was  false  or  fraudulent  in  the  par- 
ticulars specified. 

(c)  That  when  the  accused  made  the  claim  or  caused  it  to 
be  made  he  knew  that  it  was  false  or  fraudulent  in  such  par- 
ticulars. 

(d)  The  amount  involved,  as  alleged. 

II.    PRESENTING  OR  CAUSING  TO  BE  PRESENTED  FOR  APPROVAL  OR 
PAYMENT  A  FALSE  OR  FRAUDULENT  CLAIM. 

See  second  paragraph  of  the  article  and  matter  under  head- 
*ig  "I." 

The  claim  must  be  presented  to  some  person  having  au- 
thority to  approve  or  pay  it.  False  and  fraudulent  claims 
include  not  only  those  containing  some  material  false  state- 
ment, but  also  claims  that  the  person  presenting  knows  to 
have  been  paid,  or  for  some  other  reason  knows  he  is  not  au- 
thorized to  present  or  receive  money  on. 

Where  an  officer  knows  that  a  certain  duly  assigned  pay 
account  of  his  is  outstanding  and  that  the  assignee  can  collect 
on  it  if  he  chooses  to  do  so,  it  is  no  defense  to  a  charge  against 
such  officer  of  presenting  for  payment  a  second  account  cov- 
ering the  same  period  as  the  assigned  account,  that  the  second 
account  was  presented  relying  on  the  assignee's  statement 
that  he  would  not  present  the  first.  But  where  the  accused 
has  good  grounds  to  believe  and  actually  does  believe  when 
he  presents  the  second  account  that  the  assigned  account  had 
been  canceled  or  surrendered  by  the  assignee,  his  presentation 
of  the  second  claim  does  not  constitute  this  offense.  A  can- 
cellation or  surrender  of  the  first  account  after  the  presenta- 
tion of  the  second  account  is,  of  course,  no  defense  to  the 
charge. 

Presenting  to  a  paymaster  a  false  final  statement,  knowing 
it  to  be  false,  is  an  example  of  an  offense  under  this  para- 
graph. 


451 


^[    444  CHAPTER  XVII. 

PROOF. 

(a)  That  the  accused  presented  or  caused  to  be  presented 
for  approval  or  payment  to  a  certain  person  in  the  civil  or 
military  service  of  the  United  States  a  certain  claim  against 
the  United  States,  as  alleged. 

(b)  That  such  claim  was  false  or  fraudulent  in  the  par- 
ticulars alleged. 

(c)  That  when  the  accused  presented  the  claim  or  caused 
it  to  be  presented  he  knew  it  was  fictitious  or  dishonest  in 
such  particulars. 

(d)  The  amount  involved,  as  alleged. 

III.    ENTERING  INTO  AN  AGREEMENT  OR  CONSPIRACY  TO  DEFRAUD 
TIIE  UNITED  STATES  THROUGH  FALSE  CLAIMS. 

See  the  third  paragraph  of  this  article. 

A  conspiracy  is  the  corrupt  agreeing  together  of  two  or 
more  persons  to  do  by  concerted  action  something  unlawful 
either  as  a  means  or  an  end.  (Bishop,  vol.  2,  p.  98.) 

The  mere  entry  into  a  corrupt  agreement  for  the  purpose 
of  defrauding  the  United  States  through  any  of  the  means 
specified  constitutes  the  offense.  An  example  of  this  offense 
is  an  agreement  between  a  contractor  and  an  officer  to  de- 
fraud the  United  States  by  means  of  a  padded  voucher  to  be 
certified  as  correct  by  the  officer. 

PEOOF. 

(a)  That  the  accused  and  one  or  more  other  persons 
named  or  described  entered  into  an  agreement. 

(£)  That  the  object  of  the  agreement  was  to  defraud  the 
United  States. 

(c)  That  the  means  by  which  the  fraud  was  to  be  effected 
were  to  obtain  or  assist  certain  other  persons  to  obtain  the 
allowance  or  payment  of  a  certain  false  or  fraudulent  claim, 
as  specified. 

(d)  The  amount  involved,  as  alleged. 


PUNITIVE  AETICLES   OF  WAR.  ^    444 

IV,  MAKING,  USING,  PROCURING,  OR  ADVISING  THE  MAKING  OR 
USE  OF  A  FALSE  WRITING  .OR  OTHER  PAPER  IN  CONNECTION  WITH 
CLAIMS. 

See  the  fourth  paragraph  of  the  article,  and  matter  under 
headings  "I"  and "II." 

It  is  not  necessary  to  the  offense  of  making  a  writing  know- 
ing it  to  contain  false  or  fraudulent  statements  that  such 
writing  be  used  or  attempted  to  be  used,  or  that  the  claim  in 
support  of  which  it  was  made  be  presented  for  approval,  al- 
lowance, or  payment.  The  false  or  fraudulent  statement 
should,  however,  be  material. 

In  the  offense  of  procuring  the  making  or  use  of  the  writing 
or  other  paper,  the  paper  must  be  made  or  used ;  but  in  the 
offense  of  advising  such  acts  the  making  or  use  of  the  paper 
is  not  necessary.  Examples  of  offenses  under  this  paragraph 
are :  Willfully  inducing  another  to  make  to  the  United  Stales 
a  lease  of  premises  containing  a  false  and  fraudulent  state- 
ment with  a  view  of  obtaining  the  allowance  of  a  false  claim 
for  rent  against  the  United  States ;  falsification  by  a  soldier 
of  an  entry  in  the  company  clothing  book  for  the  purpose 
described  in  this  paragraph  of  the  article;  and  the  making 
by  an  officer  in  his  pay  account  of  false  and  fraudulent  state- 
ments with  a  view  to  securing  the  payment  of  such  account. 


PEOOF. 


(a)  That  the  accused  made  or  used  or  procured  or  advised 
the  making  or  use  of  a  certain  writing  or  other  paper,  as 
alleged. 

(b)  That   certain  statements   in  such   writing  or  other 
papers  were  false  or  fraudulent,  as  alleged. 

(c)  That  the  accused  knew  this. 

(d)  The  facts  and  circumstances  indicating  that  the  act 
of  the  accused  was  for  the  purpose  of  obtaining  or  aiding 
certain  others  to  obtain  the  approval,  allowance,  or  payment 
of  a  certain  claim  or  claims  against  the  United  States,  as 
specified. 

(e)  The  amount  involved,  as  alleged. 


^f    444  CHAPTER   XVII. 

V.   FALSE  OATH  IN  CONNECTION  WITH  CLAIMS. 

See  the  fifth  paragraph  of  the  article  and  matter  under 
headings  "I,"  "II,"  and  "IV." 

PKOOF. 

(a)  That  the  accused  made  or  procured  or  advised  the 
making  of  an  oath  to  a  certain  fact  or  to  a  certain  writing 
or  other  paper,  as  alleged. 

(b)  That  such  oath  was  false,  as  alleged. 

(c)  That  the  accused  knew  it  was  false. 

(d)  The  facts  and  circumstances  of  the  case  indicating 
that  the  act  was  for  the  purpose  of  obtaining  or  aiding  certain 
others  to  obtain  the  approval,  allowance,  or  payment  of  a 
certain  claim  or  claims  against  the  United  States,  as  alleged. 

VI.  FORGERY,  ETC.,  OF  SIGNATURE  IN  CONNECTION  WITH  CLAIMS. 

See  the  sixth  paragraph  of  the  article  and  matter  under 
headings  "  I  "  and  "  II "  above. 

The  term  "  forges  or  counterfeits  "  includes  any  fraudu- 
lent making  of  another's  signature,  whether  an  attempt  is 
made  to  imitate  the  handwriting  or  not. 

PKOOF. 

(a)  That  the  accused  forged  or  counterfeited  the  signature 
of  a  certain  person  on  a  certain  writing  or  other  paper  or 
that  he  procured  or  advised  the  act  as  specified;  or  that  he 
used  the  forged  or  counterfeited  signature  of  a  certain  person 
or  procured  or  advised  its  use,  knowing  such  signature  to  be 
forged  or  counterfeited,  as  alleged. 

(&)  The  facts  and  circumstances  of  the  case  indicating 
that  his  act  was  for  the  purpose  of  obtaining  or  aiding  cer- 
tain others  to  obtain  the  approval,  allowance,  or  payment  of 
a  certain  claim  or  claims  against  the  United  States,  as  alleged. 

VII.    DELIVERING  LESS  THAN  AMOUNT  CALLED  FOR  BY  RECEIPT. 

See  the  seventh  paragraph  of  the  article. 

It  is  immaterial  in  this  offense  by  what  means,  whether  by 
deceit,  collusion,  or  otherwise,  the  accused  effected  the  trans- 
action, or  what  his  purpose  was  in  so  doing. 

454 


PUNITIVE   ARTICLES   OF   WAR.  ^f    444 

Instances  of  this  offense  are : 

A  contractor  gave  a  receipt  for  a  greater  amount  than  was 
due  him  from  the  United  States.  Thereupon  the  disbursing 
officer  gave  him  the  full  amount  called  for  by  the  receipt,  but 
received  back  from  the  contractor  the  excess  over  the  amount 
actually  due. 

A  disbursing  officer,  having  delivered  to  a  creditor  of  the 
United  States  less  money  than  was  actually  due,  received  a 
receipt  signed  in  blank  by  the  creditor,  which  he  afterwards 
completed  by  writing  the  true  amount  due. 

PROOF. 

(a)  That  the  accused  had  charge,  possession,  custody,  or 
control  of  certain  money  or  property  of  the  United  States 
furnished  or, intended  for  the  military  service  thereof,  as  al- 
leged. 

(b)  That  he  obtained  a  receipt  for  a  certain  amount  or 
quantity  of  such  money  or  property,  as  alleged. 

(c)  That   for  such  -receipt  he   knowingly   delivered,  or 
caused  to  be  delivered,  to  a  certain  person  having  authority  to 
receive  it  an  amount  or  quantity  of  such  money  or  property 
less  than  the  amount  or  quantity  thereof  specified  in  such  re- 
ceipt. 

(d)  The  value  of  the  undelivered  money  or  property,  as 
alleged. 

VIII.    MAKING    OR    DELIVERING    RECEIPT    WITHOUT    HAVING    FULL 
KNOWLEDGE  THAT  THE  SAME  IS  TRUE. 

See  the  eighth  paragraph  of  the  article. 

Where,  for  instance,  an  officer,  or  other  person  subject  to  mili- 
tary law,  is  authorized  to  make  or  deliver  any  paper  certifying 
the  receipt  of  any  property  of  the  United  States  furnished  or  in- 
tended for  the  military  service  thereof,  and  a  receipt  or  other 
paper  is  presented  to  him  for  signature,  stating  that  a  certain 
amount  of  supplies  has  been  furnished  by  a  certain  contractor, 
it  becomes  his  imperative  duty  before  signing  the  paper  to  have 
full  knowledge  that  the  full  amount  of  supplies  therein  stated 
to  have  been  furnished  has  in  effect  been  furnished,  and  that  the 
statements  contained  in  the  paper  are  true.  If  he  signs  the 


455 


If    444  CHAPTER  XVII. 

paper  without  such  full  knowledge,  then  he  is  guilty  of  a  viola- 
tion of  this  clause  of  the  article,  whether  or  not  he  knows  or 
has  reason  to  know  that  the  statements  in  the  paper  are  untrue, 
since  it  is  his  duty  to  know  that  they  are  true  before  signing  it. 
If  in  fact  he  knows  that  a  less  amount  of  supplies  has  actually 
been  furnished  than  the  amount  stated  in  the  receipt,  then  of 
course  such  definite  knowledge  of  the  falsity  of  the  paper  makes 
it  impossible  for  him  to  have  full  knowledge  that  the  amount 
stated  in  the  receipt  to  have  been  furnished  is  true,  and  there- 
fore makes  him  guilty  of  a  violation  of  this  clause  of  the  article ; 
but  he  is  equally  guilty  under  this  clause  if  in  fact  he  does  not 
know  whether  or  not  the  statement  in  the  paper  is  true  and  signs 
it  without  first  taking  the  necessary  steps  to  procure  full  knowl- 
edge on  the  subject  and  without  actually  having  full  knowledge 
that  it  is  true.  If  he  fails  in  that  duty,  and  signs  the  paper 
without  taking  the  proper  steps  to  procure  knowledge  of  the 
facts,  his  action  in  so  signing  without  full  knowledge  of  the  facts 
will  be  deemed  prima  facie  evidence  of  an  intent  to  defraud  the 
United  States,  and  the  burden  of  proof  is  on  him  to  show,  if  he 
can,  that  he  did  not  in  fact  have  such  intent,  if  it  turns  out 
afterwards  that  the  paper  was  in  fact  false. 

PROOF. 

(a)  That  the  accused  was  authorized  to  make  or  deliver 
a  certificate  of  the  receipt  from  a  certain  person  of  certain 
property  of  the  United  States  furnished  or  intended  for  the 
military  service  thereof,  as  alleged. 

(£>)  That  he  made  or  delivered  to  such  person  such  cer- 
tificate, as  alleged. 

(c)  That  such  certificate  was  made  or  delivered  without 
the  accused  having  full  knowledge  of  the  truth  of  a  certain 
material  statement  or  statements  therein. 

(d)  The  facts  and  circumstances  indicating  that  his  act 
was  done  with  intent  to  defraud  the  United  States. 

(e)  The  amount  involved,  as  alleged. 

IX.    EMBEZZLEMENT,  MISAPPROPRIATION,  SALE,  ETC.,  OF  MILITARY 

PROPERTY. 

For  definitions  and  principles  respecting  larceny  and  em- 
bezzlement, see  headings  "VII"  and  "VIII"  under  the 
ninety- third  article. 

456 


PUNITIVE  ARTICLES  OF  WAR.  ^f    444 

Misappropriating  is  devoting  to  any  unauthorized  purpose. 
The  misapplication  meant  is  where  such  purpose  is  for  the 
party's  own  use  or  benefit. 

For  the  definition  of  "  disposes  of,"  see  heading  "  I "  under 
the  eightieth  article. 

The  larceny,  embezzlement,  etc.,  must  be  of  the  particular 
kind  of  property  mentioned  in  the  article.  Post  exchange 
and  company  funds  and  money  appropriated  for  other  than 
the  military  service  do  not  come  within  the  description 
"  money  of  the  United  States  furnished  or  intended  for  the 
military  service  thereof."  The  term  "  embezzlement  "  as  used 
in  this  article  does  not  include  acts  or  omissions  not  within 
the  definition  of  embezzlement  under  sections  834  and  835,  or 
851b,  of  tlie  Code  of  the  District  of  Columbia  (see  "  Embezzlement, 
Division  VIII,  par.  443,  supra),  but  which  may  be  expressly  de- 
clared by  some  other  special  statute  to  be  embezzlements. 
Such  other  statutory  embezzlements  are  chargeable,  however, 
under  the  ninety-sixth  article. 

The  misappropriation  of  the  property  or  money  need  not 
be  for  the  benefit  of  the  accused ;  the  words  "  to  his  own  use 
or  benefit "  qualify  the  word  "  applies  "  only. 

Instances  of  misappropriation  are: 

An  officer  of  the  Quartermaster's  Department  used  teams, 
tools,  and  other  public  property  in  his  possession  as  such 
officer  in  erecting  buildings,  etc.,  for  the  beneft  of  an  associa- 
tion composed  mainly  of  civilians,  of  which  he  was  a  member. 

An  officer  of  the  Quartermaster's  Department  loaned  public 
property  (corn)  to  a  contractor  for  the  purpose  of  enabling 
him  to  fill  a  contract  made  with  the  United  States  through 
another  officer. 

An  instance  of  misapplication  is  the  temporary  use  by  a 
quartermaster  of  Government  horses  in  his  charge  to  draw 
hie  private  carriage  on  nonpublic  business. 

PBOOF. 

In  larceny  and  embezzlement : 

(a)  See  proof  under  headings  "  VII "  and  "  VIII "  under 
the  ninety-third  article. 

(£>)  That  the  property  belonged  to  the  United  States  and 
that  it  was  furnished  or  intended  for  the  military  service 
thereof. 

457 


^f    444  CHAPTER   XVII. 

In  misappropriation  and  misapplication: 

(a)  That  the  accused  misappropriated  or  applied  to  his 
own  use  certain  property  in  the  manner  alleged. 

(&)  That  such  property  belonged  to  the  United  States 
and  that  it  was  furnished  or  intended  for  the  military  serv- 
ice thereof. 

(c)  The  facts  and  circumstances  of  the  case  indicating  that 
the  act  of  the  accused  was  willfully  and  knowingly  done. 

(d)  The  value  of  the  property,  as  specified. 

X.    PURCHASING  OR  RECEIVING  IN  PLEDGE  OF  MILITARY  PROPERTY. 

See  the  tenth  paragraph  of  the  article  and  matter  under 
fifty-ninth  article. 

To  constitute  this  offense  the  accused  must  know  not  only 
(1)  that  the  person  selling  or  pawning  the  property  was  in 
one  of  the  specified  classes  and  (2)  that  the  property  was  the 
property  of  the  United  States,  but  also  (3)  that  the  person  so 
selling  x>r  pawning  it  had  no  lawful  right  so  to  do. 

As  to  "  knowingly  "  see  "  Definitions  and  principles  "  under 
fifty-fifth  article. 

PROOF. 

(a)  That  the  accused  purchased,  or  received  in  pledge, 
for  a  certain  obligation  or  indebtedness  certain  military  prop- 
erty of  the  United  States,  as  alleged,  knowing  it  to  be  such 
property. 

(b)  That  such  property  was  purchased  or  so  received  in 
pledge  from  a  certain  soldier,  officer,  or  other  person  who 
was  a  part  of  or  employed  in  the  military  service  of  the 
United  States,  as  alleged,  and  that  the  accused  knew  the 
person  selling  or  pledging  the  property  to  be  such  soldier, 
officer,  or  other  person. 

(c)  That  such  soldier,  officer,  or  other  person  had  not  the 
lawful  right  to  sell  or  pledge  such  property. 

(d)  That  the  accused  knew,  at  the  time  of  such  lack  of  lawful 
right  in  such  soldier,  officer,  or  other  person,  to  so  sell  or  pledge 
such  property. 

(e)  The  value  of  the  property,  as  alleged.' 


458 


PUNITIVE   ARTICLES   OF   WAR.  ^f    445 

XI.  Former  officer  guilty,  while  he  was  in  service,  of  embezzlement  of 
ration  savings,  post  exchange,  company,  or  other  like  funds,  or  of 
money  or  other  property  entrusted  to  him  by  enlisted  men. 

See  the  last  sentence  of  the  article  and  see  also  "  Embezzle- 
ment," Division  VIII,  paragraph  443,  supra,  and  also  Division  IX 
of  this  paragraph,  supra.  No  one  can  be  tried  under  this  paragraph 
of  the  article  except  a  person  who  was  formerly  an  officer  of  the 
Army  and  who  has  been  discharged,  dismissed,  or  dropped  from 
the  rolls,  and  for  one  of  the  offenses  mentioned  in  this  paragraph, 
committed  while  the  accused  was  in  the  military  service  of  the 
United  States,  and  within  the  limitation  of  time  fixed  by  the 
thirty-ninth  article  of  war,  that  is  to  say,  committed  within 
three  years  before  arraignment. 

PROOF. 

(a)  That  the  accused  was  formerly  an  officer  of  the  Army  of 
the  United  States. 

(b)  That  the  accused  has  received  his  discharge  from  the 
Army  or  has  been  dismissed  or  dropped  from  the  rolls. 

(c)  That  the  accused,  while  in  the  military  service  of  the 
United  States,  was  guilty,  as  alleged  in  the  specification,  of  em- 
bezzlement of  (1)  ration  savings,  (2)  post  exchange  funds,  (3) 
company  funds,  (4)  other  like  funds,  or  (5)  of  money  or  other 
property  entrusted  to  his  charge  by  an  enlisted  man  or  men. 
(For  proof  of  embezzlement  see  under  "  Embezzlement,"  supra, 
Division  VIII,  par.  443.) 

445.  Ninety-fifth  Article  of  War: 

Any  officer  or  cadet  who  is  convicted  of  conduct  unbecoming  an 
officer  and  a  gentleman  shall  be  dismissed  from  the  service. 

DEFINITIONS  AND  PRINCIPLES. 

The  conduct  contemplated  is  action  or  behavior  in  an  of- 
ficial capacity  which,  in  dishonoring  or  disgracing  the  in- 
dividual as  an  officer,  seriously  compromises  his  character 
and  standing  as  a  gentleman,  or  action  or  behavior  in  an  un- 
official or  private  capacity  which,  in  dishonoring  or  disgrac- 
ing the  individual  personally  as  a  gentleman,  seriously 
compromises  his  position  as  an  officer  and  exhibits  him  as 


459 


^[445  CHAPTER   XVII. 

morally  unworthy  to  remain  a  member  of  the  honorable  pro- 
fession of  arms.     (Winthrop,  p.  1106.) 

There  are  certain  moral  attributes  common  to  the  ideal  of- 
ficer and  the  perfect  gentleman,  a  lack  of  which  is  indicated 
by  acts  of  dishonesty  or  unfair  dealing ;  of  indecency  or  in- 
decorum; or  lawlessness,  injustice,  or  cruelty. 

Not  every  one  is  or  can  be  expected  to  meet  ideal  stand- 
ards or  to  possess  the  attributes  in  the  exact  degree  demanded 
by  the  standards  of  his  own  time;  but  there  is  a  limit  of 
tolerance  below  which  the  individual  standards  in  these  re- 
spects of  an  officer  or  cadet  can  not  fall  without  his  being 
morally  unfit  to  be  an  officer  or  cadet  or  to  be  considered  a 
gentleman. 

This  article  contemplates  such  conduct  by  an  officer  or 
cadet  which,  taking  all  the  circumstances  into  consideration, 
satisfactorily  shows  such  moral  unfitness. 

This  article  includes  acts  made  punishable  by  any  other 
article  of  war,  provided  such  acts  amount  to  conduct  unbe- 
coming an  officer  and  a  gentleman ;  thus,  an  officer  who  em- 
bezzles military  property  violates  both  this  and  the  preced- 
ing article. 

Instances  of  violation  of  this  article  are : 

Knowingly  making  a  false  official  statement ;  dishonorable 
neglect  to  pay  debts ;  opening  and  reading  another's  letters ; 
giving  a  check  on  a  bank  where  there  were  no  funds  to  meet 
it,  and  without  intending  that  there  should  be ;  using  insult- 
ing or  defamatory  language  to  another  officer  in  his  presence, 
or  about  him  to  other  military  persons ;  being  grossly  drunk 
and  conspicuously  disorderly  in  a  public  place ;  public  asso- 
ciation with  notorious  prostitutes;  cruel  treatment  of  sol- 
diers ;  committing  or  attempting  to  commit  a  crime  involving 
moral  turpitude ;  failing  without  a  good  cause  to  support  his 
family. 

For  other  instances,  see  Digest,  pages  140-143,  and  Win- 
throp, pages  1107-1115. 

ANALYSIS  AND  PROOF. 

This  article  applies  to  officers  and  cadets  only. 
The  article  defines  one  offense,  viz: 


PUNITIVE  ARTICLES  OF  WAR.  ^[446 

I.   CONDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN. 

PROOF. 

(a)  That  the  accused  did  or  omitted  to  do  the  acts  as 
alleged. 

(b)  The  circumstances,  intent,  motive,  etc.,  as  specified. 

446.  Ninety-sixth  Article  of  War. 


not  mentioned  in  these  articles,  all  disorders  and  neglects 
to  the  prejudice  of  good  order  and  military  discipline,  all  conduct  of 
a  nature  to  bring  discredit  upon  the  military  service,  and  ail  crimes 
or  offenses  not  capital,  of  which  persons  subject  to  military  law  may 
he  guilty,  shall  be  taken  cognizance  of  by  a  general  or  special  or 
summary  court-martial,  according  to  the  Mature  and  degree  of  the 
offense,  and  punished  at  the  discretion  of  such  court. 

DEFINITIONS  AND  PRINCIPLES. 

See  matter  under  the  respective  headings  under  which  the 
offenses  are  treated. 

ANALTSIS  AND  PROOF. 

The  article  applies  to  any  person  subject  to  military  law. 
See  article  2.  The  article  embraces  offenses  falling  within  the 
classes  described  therein,  and  not  mentioned  in  the  other 
punitive  articles.  The  offenses  may  be  treated  under  the  fol- 
lowing headings: 

I.  Disorders  and  neglects  to  the  prejudice  of  good  order 
and  military  discipline. 

II.  Conduct  of  a  nature  to  bring  discredit  upon  the**  mili- 
tary service. 

III.  Crimes  or  offenses  not  capital. 

I.  DISORDERS   AND    NEGLECTS   TO  THE  PREJUDICE    OF   GOOD   ORDER 
AND   MILITARY   DISCIPLINE. 

The  disorders  and  neglects  include  all  acts  or  omissions 
to  the  prejudice  of  good  order  and  military  discipline  not 
made  punishable  by  any  of  the  preceding  articles. 

By  the  term  "to  the  prejudice,"  etc.,  is  to  be  understood 
directly  prejudicial,  not  indirectly  or  remotely  merely.  An 
irregular  or  improper  act  pn  the  part  of  an  officer  or  soldier 


4G1 


If    446  CHAPTER    XVIJ. 

can  scarcely  be  conceived  which  may  not  be  regarded  as  in 
some  indirect  or  remote  sense  prejudicing  military  dis- 
cipline ;  but  it  is  hardly  to  be  supposed  that  the  article  con- 
templated such  distant  effects,  and  the  same  is,  therefore, 
deemed  properly  to  be  confined  to  cases  in  which  the  preju- 
dice is  reasonably  direct  and  palpable.  (Winthrop,  p.  1123.) 

Instances  of  such  disorders  and  neglects  in  the  case  of 
officers  are :  Disobedience  of  standing  orders,  or  of  the  orders 
of  an  officer  when  the  offense  is  not  chargeable  under  a  spe- 
cific article;  allowing  a  soldier  to  go  on  duty  knowing  him 
to  be  drunk;  rendering  himself  unfit  for  duty  by  excessive 
use  of  intoxicants  or  drugs;  drunkenness. 

Instances  of  such  disorders  and  neglects  in  the  cases  of 
enlisted  men  are :  Failing  to  appear  on  duty  with  a  proper 
uniform ;  appearing  with  dirty  clothing ;  malingering ;  abus- 
ing public  animals ;  refusing  to  submit  to  treatment  necessary 
to  render  him  fit  for  duty ;  refusing  to  submit  to  a  necessary 
and  proper  operation  not  endangering  life  (see  par.  53,  C.  of 
O.,  1881-1915) ;  careless  discharge  of  firearms;  personating 
an  officer;  making  false  statements  to  an  officer  in  regard  to 
matters  of  duty. 

PEOOF. 

(a)  That  the  accused  did  or  failed  to  do  the  acts  alleged. 

(b)  The  circumstances,  intent,  etc.,  as  specified. 

II.    CONDUCT   OF   A    NATURE  TO   BRING   DISCREDIT   UPON    THE 
MILITAY    SERVICE. 

Instances  of  such  conduct  on  the  part  of  persons  subject  to 
military  law  are  unlawful  violations  of  local  State  statutes  (not 
enacted  by  authority  of  any  law  of  the  United  States),  or  mu- 
nicipal ordinances  or  regulations,  or  of  the  laws  of  friendly 
foreign  countries;  or  where  they  are  guilty  of  any  other  dis- 
creditable conduct  not  made  punishable  by  any  specific  articles, 
or  by  the  other  parts  of  the  ninety-sixth  (the  general)  article. 

"  Discredit,"  as  here  used,  means  to  injure  the  reputation  of. 

Another  principal  object  of  including  this  phrase  in  the 
general  article  was  to  make  military  offenses  those  acts  or 
omissions  of  retired  soldiers  which  were  not  elsewhere  made 


462 


PUNITIVE  ARTICLES  OF  WAR.  ^f    446 

punishable  by  the  Articles  of  War  but  which  are  of  a  nature 
to  bring  discredit  on  the  service,  such  as  a  failure  to  pay  debts. 
False  Swearing. — Giving  false  testimony  before  State  courts 
and  other  tribunals  not  organized  or  acting  under  any  law 
of  the  United  States,  and  making  false  oaths  or  affidavits  in 
any  other  case  in  which  no  law  of  the  United  States  author- 
izes an  oath  to  be  administered,  is  not  perjury  under  section  125 
of  the  Federal  Penal  Code  of  1910  (see  "  Perjury,"  Division  IX, 
par.  443,  supra),  and  is,  therefore,  not  punishable  as  perjury 
under  the  ninety-third  article  of  war.  Such  false  swearing  is 
chargeable  as  conduct  of  a  nature  to  bring  discredit  upon  the 
military  service  under  the  ninety-sixth  article  of  war. 


PKOOP. 


(a)  That  the  accused  did  or  failed  to  do  the  acts  alleged. 

(b)  The  circumstances,  intent,  etc.,  as  specified. 

III.    CRIMES    OR   OFFENSES    NOT    CAPITAL. 

The  crimes  referred  to  in  A.  W.  96  manifestly  embrace  those 
not  capital  committed  in  violation  of  public  law  as  enforced 
by  the  civil  power  (U.  S.  v.  Grafton,  206  U.  S.  348),  the 
"  public  law  "  here  in  contemplation  being  that  of  the  United 
States;  that  is,  that  enacted  or  adopted  by  the  authority  of  the 
Government  of  the  United  States.  This  includes  the  laws  of  the 
District  of  Columbia  and  of  the  several  Territories  and  posses- 
sions of  the  United  States  as  well  as  all  laws  of  the  United 
States;  but  it  excludes  city  ordinances  and  regulations  and  State 
statutes,  as  well  as  the  laws  of  friendly  foreign  countries  (vio- 
lations of  which  are,  however,  chargeable  as  conduct  of  a  nature 
to  bring  discredit  upon  the  military  service.  (See,  supra,  Divi- 
sion II  of  this  paragraph.) 

All  crimes  or  offenses  in  violation  of  such  public  law  of  the 
United  States,  wherever  committed,  that  are  not  thereby  made 
punishable  by  death,  are  excluded,  except  such  as  are  specifi- 
cally included  in  some  other  article. 

Within  this  description  would  be  a  noncapital  crime 
which,  although  designated  by  some  special  enactment  for 
some  special  purpose,  or  if  committed  by  some  special  person  or 

21358°— 20- 30 

463 


f    446  CHAPTER   XVII. 

class  of  persons,  or  under  some  special  circumstance,  with  one 
of  the  names  used,  for  instance,  in  the  ninety-third  article, 
is  not  within  the  general  definition  of  the  offense. 

Thus  section  90  of  the  Federal  Penal  Code  of  1910  provides 
that  a  failure  by  an  officer  to  render  accounts  for  public 
money  received  by  him  unless  authorized  to  retain  it  as  sal- 
ary, pay,  or  emolument  is  an  embezzlement  of  such  funds. 
Such  an  embezzlement  not  being  within  the  general  definition 
of  embezzlement  as  the  term  is  used  in  the  ninety-third  and 
ninety- fourth  articles  would  be  chargeable  under  the  general 
article. 

The  elements  of  some  of  the  more  common  crimes  that  are 
chargeable  under  this  article  will  now  be  discussed. 

(1)  Assault. 

(2)  Assault    and    battery. — See    matter    under    heading 
"  XII "  under  ninety-third  article. 

A  battery  is  any  unlawful  touching  or  injury,  however 
slight,  to  the  person  of  another  directly  or  indirectly  done 
in  an  angry,  revengeful,  rude,  or  insolent  manner.  Throw- 
ing water  or  spitting  in  a  person's  face  is  a  battery.  So, 
merely  taking  hold  of  another's  clothing,  or  pushing  another 
against  him,  or  striking  a  horse  on  which  he  is  riding  caus- 
ing him  to  be  thrown;  striking  his  cane  while  in  his  hand, 
is  a  battery  when  done  unlawfully  and  in  the  manner  de- 
scribed. 

If  the  injury  is  accidentally  inflicted  in  doing  a  lawful  act 
without  culpable  negligence  the  offense  is  not  committed ;  but 
where  personal  injury  results  from  the  reckless  doing  of  an 
act  likely  to  result  in  such  injury,  the  offense  is  committed. 

It  is  no  defense  that  the  injury  took  place  on  a  person  for 
which  it  was  not  intended,  or  that  the  injury  was  not  the  im- 
mediate result  of  the  defendant's  acts.  Thus,  if  a  person 
throws  a  firecracker  in  a  crowd  where  it  is  tossed  from  hand 
to  hand  and  finally  explodes  and  puts  out  a  man's  eye,  the 
offense  is  committed. 

(3)  Maiming.-— Section  283  of  the  Federal  Penal  Code  of  1910 
provides : 

Whoever,  with  intent  to  maim  or  disfigure,  shall  cut,  bite,  or  slit 
the  nose,  ear,  or  lip,  or  cut  out  or  disable  the  tongue,  or  put  out  or 
destroy  an  eye,  or  cut  off  or  disable  a  limb  or  any  member  of  another 

464 


PUNITIVE  ARTICLES  OF  WAR.  *[[    446 

person;  or  whoever,  with  like  intent,  shall  throw  or  pour  upon  another 
person  any  scalding  hot  water,  vitriol  or  other  corrosive  acid,  or 
caustic  substance  whatever,  shall  be  fined  not  more  than  one  thousand 
dollars  or  imprisoned  not  more  than  seven  years,  or  both. 

This  is  more  inclusive  than  the  common-law  mayhem  punish- 
able under  A.  W.  93  (see  "Mayhem,"  Division  II,  par.  443, 
supra)  in  that  mayhem  only  includes  such  hurts  as  render  a 
man  "  less  able,  in  fighting,  either  to  defend  himself  or  to  annoy 
his  adversary/'  and  does  not  include  such  injuries  as  merely 
disfigure.  Injuries  of  the  latter  class,  therefore,  together  with 
such  injuries  as  scalding  with  hot  water,  vitriol  or  other  cor- 
rosive acid,  or  a  caustic  substance,  which  constitute  violations 
of  section  283  of  the  Federal  Penal  Code  above  quoted,  should 
be  charged  as  maiming,  under  A.  W.  96.  (See  also  "Assault 
with  a  dangerous  weapon,  instrument,  or  other  thing,"  Division 
XIII,  par.  443,  supra.) 

(4)  Carnal  Knowledge  of  Female  under  Sixteen. — Section  279 
of  the  Federal  Penal  Code  of  1910  provides: 

Whoever  shall  carnally  and  unlawfully  know  any  female  under  the 
age  of  sixteen  years,  or  shall  be  accessory  to  such  carnal  and  unlawful 
knowledge  "before  the  fact,  shall,  for  a  first  offense,  be  imprisoned  for 
not  more  than  fifteen  years,  and  for  a  subsequent  offense  be  impris- 
oned not  more  than  thirty  years. 

This  offense  is  not  rape  and,  therefore,  it  is  not  punishable 
with  death,  and  can  not  be  charged  under  the  ninety-second 
article  of  war.  (As  to  rape,  see  Division  II,  par.  442,  supra.) 

Neither  force  nor  absence  of  consent  of  the  female  is  essential 
to  be  proved  in  a  prosecution  under  this  section,  but  evidence  of 
absence  of  consent  is  admissible  as  affecting  the  measure  of 
punishment. 

The  essential  elements  of  the  offense  are  (1)  the  carnal  knowl- 
edge and  (2)  that  the  female  was  under  16  years  of  age,  and 
was  not  the  lawful  wife  of  the  accused.  (As  to  carnal  knowl- 
edge, see,  supra,  "  Rape,"  Division  II,  par.  442.) 

(5)  Burning  Buildings,  Vessels,  Lumber,  Stores,  Arms,  Ammu- 
nition, etc. — Section  286  of  the  Federal  Penal  Code  of  1910 
provides : 

Sec.  286.  Whoever  shall  maliciously  set  fire  to,  burn,  or  attempt  to 
burn,  or  by  any  means  destroy  or  injure,  or  attempt  to  destroy  or  in- 
jure, any  arsenal,  armory,  magazine,  ropewalk,  shiphouse,  warehouse, 


^[  446  CHAPTER  xvn. 

blockhouse,  or  barrack,  or  any  storehouse,  barn,  or  stable  not  parcel 
of  a  dwelling  house,  or  any  other  building  not  mentioned  in  the  sec- 
tion last  preceding,  or  any  vessel  built,  building,  or  undergoing  repair, 
or  any  lighthouse,  or  beacon,  or  any  machinery,  timber,  cables,  rig- 
ring,  or  other  materials  or  appliances  for  building,  repairing,  or  fitting 
out  vessels,  or  any  pile  of  wood,  boards,  or  other  lumber,  or  any  mili- 
tary, naval,  or  victualing  stores,  arms,  or  other  munitions  of  war,  shall 
be  fined  not  more  than  five  thousand  dollars  and  imprisoned  not  more 
than  twenty  years. 

This  section  covers  the  burning  and  destruction  of  buildings 
which  are  not  the  subject  of  arson.  (IT.  S.  v.  Cardish,  143  Fed. 
Hep.,  640.)  (As  to  arson,  see  Division  III,  par.  443,  supra.) 

This  section  of  the  Penal  Code  is  broad  enough  to  cover  any 
burning  or  destruction  or  injury,  or  attempt  to  burn,  destroy,  or 
injure  any  structure,  machinery,  appliances,  equipment  or  stores, 
or  arms  or  ammunition  of  any  kind  whatever. 

PEOOF. 

Crimes  in  general: 

(a)  That  the  accused  did,  or  failed  to  do,  the  acts 

alleged. 
(5)  The  circumstances,  intent,  etc.,  as  alleged. 


466 


CHAPTER  XVIII. 

COURTS  OF  INQUIRY. 

Section  I.  Constitution :  Page. 

447.  When  and  by  whom  ordered 468 

447a.  Retention  of  officers  in  the  service 468 

448.  Limitation  upon  power  to  convene 468 

449.  Discretion  as  to  ordering  court 468 

Section  II.  Jurisdiction: 

450.  As  to  persons 468 

451.  As  to  time _,  469 

452.  As  to  subject  matter 469 

Section  III.  Composition: 

453.  Members 469 

454.  Recorder 469 

455.  Convening  order 469 

456.  Rank  of  members 470 

457.  Reporter  and  interpreter 470 

Section  IV.  Powers: 

458.  To  summon  and  examine  witnesses 470 

459.  Refusal  to  appear  or  testify 470 

Section  V.  Procedure : 

461.  General  principles 470 

462.  Presence  of  party  whose  conduct  is  being  investigated-  471 

463.  Counsel 471 

464.  Challenge 471 

465.  Reduced  numbers 471 

466.  Oaths 472 

467.  Examination  of  witnesses 472 

468.  Depositions 472 

469.  Conclusions 473 

470.  Obligation  of  secrecy 473 

471.  Revision  by  court 473 

472.  Publication  of  proceedings 473 

Section  VI.  Record: 

473.  How  authenticated 474 

474.  Disposition  of 474 

475.  Admissible  in  evidence—.  474 


467 


1f    447  CHAPTER  XVIII. 

SECTION  I. 
CONSTITUTION. 

447.  WHEN  AND  BY  WHOM  ORDERED. — A  court  of  inquiry 
to  examine  into  the  nature  of  any  transaction  of  or  accusation 
or  imputation  against  any  officer  or  soldier  may  be  ordered 
by  the  President  or  by  any  commanding  officer,  but  a  court 
of  inquiry  shall  not  be  ordered  by  any  commanding  officer 
except  upon  the  request  of  the  officer  or  soldier  whose  conduct 
is  to  be  inquired  into.     (A.  W.  97.) 

447a.  Retention  of  Officers  in  the  Service. — A  court  of  inquiry 
may  also  be  ordered  to  inquire  into  the  propriety  of  the  action  of 
a  classification  board  in  classifying  an  officer  in  class  B,  "  officers 
who  should  not  be  retained  in  the  service."  (Sec.  24b,  act  of 
June  4,  1920,  41  Stat.  773.) 

448.  LIMITATION  UPON  POWER  TO  CONVENE. — There  is  no 
statutory  restriction  to  the  meaning  of  the  term  "command- 
ing officer,"  consequently  any  commander  of  the  officer  or 
soldier  who  makes  the  request  would  have  authority  to  con- 
vene the  court,  but  if  the  charge  to  be  inquired  into  is  beyond 
the  jurisdiction  of  a  court-martial  which  such  commander 
can  appoint,  he  would  not,  by  analogies  of  the  service  in  the 
administration  of  military  justice,  be  the  proper  convening 
authority  in  such  case.     (Op.  J.  A.  G.,  approved  by  Secre- 
tary of  War,  Sept.  19,  1874.) 

449.  DISCRETION  AS  TO  ORDERING  COURT. — Neither  the  Pres- 
ident nor  a  commanding  officer  is  obliged  to  order  a  court  of 
inquiry  on  demand  of  an  officer  or  soldier.     Where  the  facts 
are  thoroughly  understood  by  the  authority  who  is  requested 
to  order  a  court  of  inquiry  or  can  be  satisfactorily  ascer- 
tained by  an  investigating  officer,  the  commanding  officer 
may,  in  his  discretion,  refuse  the  application;  but  in  the 
event  of  such  refusal  the  party,  if  not  satisfied,  may  appeal 
to  higher  authority.     (Winthrop,  p.  803.) 

SECTION  II. 
JURISDICTION. 

450.  As  TO  PERSONS. — A  court  of  inquiry  may  examine 
into  the  conduct  of  officers  or  soldiers  only  (A.  W.  97),  and 
the  inquiry  is  confined  to  those  actually  in  the  service.    (Di- 
gest, p.  586,  XVIII,  B.) 

468 


COURTS  OF  INQUIRY.  If    451 

451.  As  TO  TIME.— The  statute  of  limitations  (A.  W.  39) 
does  not  apply  to  courts  of  inquiry.    There  is  no  legal  objec- 
tion therefore  to  investigating  transactions  that  are  remote 
in  time. 

452.  As  TO  SUBJECT  MATTER. — The  inquiry  is  limited  to 
transactions  of  or  accusations  or  imputations  against  officers 
or  soldiers.     (A.  W.  97.)     The  principal  uses  which  courts 
of  inquiry  are  expected  to  serve  are:   (a)  For  determining 
whether  there  should  be  a  trial  by  court-martial  in  a  par- 
ticular instance;   (£)   for  informing  and  advising  superior 
authority  in  cases  which  appear  not  to  call  for  trial  by  court- 
martial,  but  for  some  other  military  or  administrative  ac- 
tion; (c)  for  the  vindication  of  character  or  conduct  (Win- 
throp,  p.  805) ;  and  (d)  for  inquiring  into  the  correctness  of  the 
action  of  classification  boards  in  classifying  officers  in  class  B 
as  not  to  be  retained  in  the  service,  under  the  provisions  of 
section  24b  of  the  Army  Reorganization  Act  of  June  4,  1920 
(41  Stat.,  773). 

SECTION  III. 

COMPOSITION. 

453.  MEMBERS. — A  court  of  inquiry  shall  consist  of  three  or 
more  officers.     (A.  W.  98.)     The  Secretary   of  War  may 
assign  retired  officers,  with  their  consent,  upon  courts  of 
inquiry.     (Act  of  Apr.  23,  1904.)     In  time  of  war  retired 
officers  may  be  employed  on  active  duty  in  the  discretion  of 
the  President.     (Sec.  127a,  subpar.  3,  act  of  June  4,  1920;  41 
Stat.,  773.) 

454.  RECORDER. — For  each  court  of  inquiry  the  authority 
appointing  the  court  shall  appoint  a  recorder.     (A.  W.  98.) 
The  recorder  is  not  an  adviser  of  the  court  nor  a  prosecutor 
before  it,  but  will  assist  the  court,  if  it  so  desires,  in  all 
matters  leading  to  correct  conclusions  of  fact  and  law. 

455.  CONVENING  ORDER. — The  form  of  the  convening  order 
is  similar  to  that  for  a  court-martial.    It  details  the  members 
and  recorder  by  name,  fixes  the  time  and  place  of  meeting, 
specifies  the  subject  matter  of  inquiry,  and  directs  a  report 
of  the  facts  only,  or  of  the  facts  with  an  opinion  on  the 
merits  of  the  case. 


^[456  CHAPTER  XVIII. 

456.  RANK  OF  MEMBERS. — There  is  no  statute  prescribing 
the  rank  of  members,  but  when  it  can  be  avoided  they  should 
not  be  inferior  in  rank  to  the  officer  whose  conduct  is  being 
inquired  into.     The  decision  of  the  appointing  authority, 
as  indicated  by  the  order  convening  the  court,  is  conclusive 
as  to  whether  or  not  it  can  be  avoided. 

457.  REPORTER  AND  INTERPRETER. — The  president  of  a  court 
of  inquiry  has  the  same  power  to  appoint  reporters  and  in- 
terpreters as  is  delegated  to  the  president  of  a  court-martial. 
(A.  W.  115.)     They  will  be  paid  at  the  rates  fixed  by  para- 
graph 113,  supra.    An  enlisted  man  may  be  detailed  to  serve 
as  stenographic  reporter  and  will  receive  extra  pay  as  pro- 
vided by  paragraph  115,  supra.     (Act  of  Aug.  24,  1912,  37 
Stat.,  575.) 

A  reporter  will  always  be  appointed  for  a  court  of  inquiry 
convened  to  consider  the  classification  of  an  officer  in  class  B, 
under  section  24b  of  the  Army  Reorganization  Act  of  June  4, 
1920,  41  Stat.,  773. 

SECTION  IV. 
POWERS. 

458.  To  SUMMON  AND  EXAMINE  WITNESSES. — A  court  of 
inquiry  and  the  recorder  thereof  shall  have  the  same  power 
to  summon  and  examine  witnesses  as  is  given  to  a  court- 
martial  and  the  trial  judge  advocate  thereof.     (A.  W.  101.) 

459.  REFUSAL  TO  APPEAR  OR  TESTIFY. — Any  person  not  sub- 
ject to  military  law  who,  being  duly  subpoenaed  to  appear  as 
a  witness  before  a  court  of  inquiry  or  before  any  officer,  mili- 
tary or  civil,  designated  to  take  a  deposition  to  be  read  in 
evidence  before  such  court,  willfully  neglects  or  refuses  to 
appear,  or  refuses  to  qualify  as  a  witness,  or  to  testify,  or  to 
produce  documentary  evidence  which  such  person  may  have 
been  legally  subpoenaed  to  produce,  shall  be  deemed  guilty  of 
a  misdemeanor  and  punished  as  in  like  offenses  with  respect 
to  courts-martial.     (A.  W.  23.) 

[Note. — Paragraph  460  is  omitted  in  this  revision.] 
SECTION  V. 
PROCEDURE. 

461.  GENERAL  PRINCIPLES. — A  court  of  inquiry  is  governed 
by  the  general  principles  of  military  law,  applying  the 


470 


COURTS  OF  INQUIRY.  *[[    462 

analogies  of  a  court-martial  where  they  are  applicable,  and 
recurring  to  adjudged  cases,  precedents,  rules,  authoritative 
legal  opinions,  and  approved  books  of  legal  exposition  where 
there  is  no  pertinent  paramount  stated  rule.  A  court  of 
inquiry  is  not  really  a  court  in  the  legal  sense  of  the  term, 
for  no  criminal  issue  is  formed  before  it,  it  arraigns  no 
accused,  receives  no  plea,  makes  no  findings  of  guilt  or  in- 
nocence, awards  no  punishment,  and  expresses  no  opinion 
unless  specially  ordered  to  do  so. 

462.  PRESENCE  or  PARTY  WHOSE  CONDUCT  Is  BEING  IN- 
VESTIGATED.— The  presence  of  the  party  whose  conduct  is 
being  investigated  is  not  essential  and  his  absence  does  not 
affect  the  authority  of  the  court  to  proceed  with  the  hearing ; 
but  nevertheless  lie  will  ordinarily,  in  all  cases  (and  always  in 
cases  of  courts  of  inquiry  convened  to  consider  the  classification 
of  an  officer  in  class  B,  under  section  24b  of  the  Army  Reorgani- 
zation Act  of  June  4,  1920,  41  Stat.,  773)  be  given  an  opportunity 
to  be  present. 

463.  COUNSEL. — The  party  whose  conduct  is  being  inquired 
into  shall  have  the  right  to  be  represented  before  the  court 
by  counsel  of  his  own  selection,  if  such  counsel  be  reasonably 
available.     (A.  W.  99.)     So  also  the  accuser,  where  there  is 
one,  should  usually  be  allowed  to  be  present  with  counsel,  and 
a  similar  privilege  may  properly  be  extended  to  any  officer 
who  will  be  materially  involved  in  the  inquiry.     (Winthrop, 
p.  812.) 

464.  CHALLENGE. — Members  of  a  court  of  inquiry  may  be 
challenged  by  the  party  whose  conduct  is  being  inquired  into, 
but  only  for  cause  stated  to  the  court.    The  court  shall  deter- 
mine the  relevancy  and  validity  of  any  challenge,  and  shall 
not  receive  a  challenge  to  more  than  one  member  at  a  time. 
(A.  W.  99.) 

465.  REDUCED  NUMBERS. — Where  the  number  of  members 
is  reduced  by  casualty  or  challenge,  the  court  may  proceed 
with  the  reduced  number,  if  not  below  the  minimum,  but  the 
appointing  authority  should  be  notified  in  order  that  he  may 
detail  new  members  if  he  desires  to  do  so.    If  any  testimony 
has  been  taken  before  a  new  member  is  added,  it  should  be 


473 


T[    466  CHAPTER  XVIII. 

read  to  him  in  the  presence  of  the  other  members.  In  the 
absence  of  the  recorder  the  junior  member  can  not  act  as 
recorder.  The  proper  procedure  is  to  notify  the  convening 
authority  and  adjourn  to  await  the  appointment  of  another 
recorder. 

466.  OATHS. — The  recorder  of  a  court  of  inquiry  shall  ad- 
minister to  the  members  the  following  oath : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will  well  and  truly  examine 
and  inquire,  according  to  the  evidence,  into  the  matter  now  befoi'e  you, 
without  partiality,  favor,  affection,  prejudice,  or  hope  of  reward.  So 
help  you  God. 

After  which  the  president  of  the  court  shall  administer 
to  the  recorder  the  following  oath : 

You,  A.  B.,  do  swear  (or  affirm)  that  you  will,  according  to  your 
best  abilities,  accurately  and  impartially  record  the  proceedings  of 
the  court  and  the  evidence  to  be  given  in  the  case  in  hearing.  So  help 
you  God. 

In  case  of  affirmation  the  closing  sentence  of  adjuration 
will  be  omitted.  (A.  W.  100.) 

Witnesses  shall  take  the  same  oath  or  affirmation  that  is 
taken  by  witnesses  before  courts-martial,  and  a  reporter 
or  interpreter  shall,  before  entering  upon  his  duties,  take 
the  oath  or  affirmation  required  of  a  reporter  or  an  inter- 
preter for  a  court-martial.  (A.  W.  101.) 

467.  EXAMINATION  OF  WITNESSES. — The   examination   of 
witnesses  may  be  by  the  court,  by  a  member  thereof,  or  by 
the  recorder,  in  the  discretion  of  the  court.     The  party  whose 
conduct  is  being  inquired  into  or  his  counsel,  if  any,  shall  be 
permitted  to  examine  and  cross-examine  witnesses  so  as  fully 
to  investigate  the  circumstances  in  question.     (A.  W.  101.) 
A  witness  may  not  be  compelled  to  answer  any  question  the 
answer  to  which  may  tend  to  incriminate  him,  or  any  question 
not  material  to   the  issue  when  such  answer  might  tend  to 
degrade  him.     (A.  W.  24.) 

468.  DEPOSITIONS. — Depositions  to  be  read  in  evidence  be- 
fore courts  of  inquiry  are  taken  and  admitted  in  evidence 
under  the  same  rules  governing  their  taking  and  admissi- 
bility  in  evidence  before  courts-martial.     (A.  W.  25,  26.) 


472 


COURTS  OF  INQUIRY.  f   469 

469.  CONCLUSIONS. — The  court  must,  as  a  finding,  give  its 
conclusions  as  to  the  facts,  and,  when  ordered,  must  also 
give  an  opinion  on  the  merits  of  the  case.    The  conclusions 
or  opinion  may  not  be  unanimous,  in  which  case  a  dissenting 
conclusion  or  opinion  is  authorized. 

470.  OBLIGATION  OF  SECRECY. — The  oath  of  members  of  a 
court  of  inquiry,  unlike  that  of  members  of  a  court-martial, 
does  not  enjoin  upon  them  secrecy  as  to  the  votes  and  opinions 
of  members,  but  under  the  custom  of  the  service  it  would  be 
conduct  prejudicial  to  discipline  to  divulge  the  recommenda- 
tion or  opinion  of  the  court  until  announced  by  the  appoint- 
ing authority,  or  to  disclose  the  vote  or  opinion  of  a  member 
unless  legally  required  to  do  so. 

471.  REVISION  BY  COURT. — If  not  satisfied  with  the  investi- 
gation, or  with  the  report  or  opinion,  the  reviewing  authority 
may  reassemble  the  court,  in  the  same  manner  as  a  court- 
martial,  and  return  the  proceedings  with  direction  either  to 
have  the  investigation  pursued  further  and  completed,  or  the 
report  of  the  facts  made  more  detailed  and  comprehensive, 
or  the  opinion  expressed  in  terms  more  definite  and  unequivo- 
cal or  more  responsive  to  the  original  instructions,  or  to 
correct  or  supply  some  other  error  or  defect.     The  inquiry 
not  being  a  trial  but  an  investigation  merely,  the  court  may 
properly  be  required,  upon  revision,  to  reexamine  witnesses 
or  to  take  entirely  new  testimony,  or  it  may  do  so  of  its 
own  motion  without  orders  in  connection  with  the  revision. 
(Winthrop,  p.  819.) 

472.  PUBLICATION  OF  PROCEEDINGS. — The  reviewing  author- 
ity, having  taken  final  action  upon  the  report  or  opinion,  may 
publish  in  orders,  in  whole  or  in  part,  or  in  substance,  the  re- 
port of  the  court  upon  the  subject  of  the  inquiry,  with  the 
opinion,  if  any,  and  the  determination  had  or  action  taken 
thereon.     Upon  considerations,  however,  of  policy  or  justice, 
the  President  or  commander  may,  in  his  discretion,  delay  the 
publication,  or  omit  altogether  the  publication  of,  the  report, 
etc.,  or  may  publish  the  result  alone,  as,  for  example,  that  it 
is  determined  that  no  further  proceedings  are  called  for  in 
the  case. 


473 


If   473  CHAPTER  XVIII. 

SECTION  VI. 
RECORD. 

473.  How  AUTHENTICATED. — Each  court  of  inquiry  shall 
keep  a  record  of  its  proceedings,  which  shall  be  authenticated 
by  the  signature  of  the  president  and  the  recorder  thereof. 
In  case  the  record  can  not  be  authenticated  by  the  recorder, 
by  reason  of  his  death,  disability,  or  absence,  it  shall  be 
signed  by  the  president  and  by  one  other  member  of  the  court. 
(A.  W.  103.) 

474.  DISPOSITION  OF. — The  record  shall  be  forwarded  to  the 
reviewing  authority.     (A.  W.  103.)     Should  the  court  be 
appointed  by  the  President  the  proceedings  will  be  sent  direct 
to  the  Judge  Advocate  General  of  the  Army.     To  his  office 
will  be  forwarded  the  original  proceedings  of  all  courts  of  in- 
quiry with  the  decisions  and  orders  of  the  reviewing  authority 
made  thereon,  accompanied  by  five  copies  of  the  order  pub- 
lishing the  case,  if  there  be  any,  also  a  copy  of  every  subse- 
quent order  affecting  the  case.    When  more  than  one  case  is 
embraced  in  a  single  order,  a  sufficient  number  of  copies  will 
be  forwarded  to  enable  one  to  be  filed  with  each  record. 

475.  ADMISSIBLE  IN  EVIDENCE. — The  record  of  the  proceed- 
ings of  a  court  of  inquiry  may  be  read  in  evidence  before  any 
court-martial  or  military  commission  in  any  case  not  capital 
nor  extending  to  the  dismissal  of  an  officer,  and  may  also  be 
read  in  evidence  in  any  proceeding  before  a  court  of  inquiry 
or  a  military  board:  Provided,  That  such  evidence  may  be 
adduced  by  the  defense  in  capital  cases  or  cases  extending  to 
the  dismissal  of  an  officer.     (A.  W.  27.    See  par.  272.) 


474 


CHAPTER  XIX. 

HABEAS  CORPUS. 

Section  I.  Purpose  of  writ:  Pag«. 

476.  To  determine  legality  of  restraint 475 

Section  II.  Where  restraint  is  by  the  United  States: 

477.  State  court  without  authority 475 

Section  III.  Return  to  writ  issued  by  State  court: 

478.  To  show  authority  for  restraint 476 

(a)  Witness  held  under  warrant  of  attachment 476 

(&)  Enlisted  man  or  general  prisoner 477 

Section  IV.  Return  to  writ  issued  by  a  United  States  court : 

479.  Contents . 477 

Section  V.  Writ  issued  in  the  Philippine  Islands: 

480.  When  return  conclusive 478 

SECTION  I. 
PURPOSE  OF  WRIT. 

476.  To  DETERMINE  LEGALITY  OF  RESTRAINT. — The  purpose 
of  the  writ  of  habeas  corpus  is  to  bring  the  person  seeking 
the  benefit  of  it  before  the  court  or  judge  to  determine 
whether  or  not  he  is  illegally  restrained  of  his  liberty.    It  is 
a  summary  remedy  for  unlawful  restraint  of  liberty  and 
it  can  not  be  made  use  of  to  perform  the  function  of  a  writ 
of  error  or  an  appeal.    Where  it  is  decided  that  the  restraint 
is  unlawful  he  is  ordered  released,  but  if  the  restraint  is 
lawful  the  writ  is  dismissed.    If  the  restraint  be  by  virtue 
of  legal  process,  the  validity  and  present  force  of  such 
process  are  the  only  subjects  of  investigation. 

SECTION  II. 
WHERE  RESTRAINT  IS  BY  THE  UNITED  STATES. 

477.  STATE  COURT  WITHOUT  AUTHORITY. — A  State  court  la 
without  authority  to  inquire  into  the  legality  of  the  restraint 


475 


1f   478  CHAPTER  XIX. 

where  it  appears  that  the  custody  is  by  virtue  "  of  the 
authority  of  the  United  States,"  the  principle  being  that  no 
State  can  authorize  one  of  its  judges  or  courts  to  exercise 
judicial  power,  by  habeas  corpus,  within  the  jurisdiction 
of  another  and  independent  government.  No  State  judge 
or  court,  after  they  are  judicially  informed  that  the  party 
is  held  under  the  authority  of  the  United  States,  has  any 
right  to  interfere  with  him  or  to  require  him  to  be  brought 
before  them.  (Robb  v.  Connolly,  111  U.  S.,  624,  632;  Able- 
man  v.  Booth,  21  How.,  506,  514;  Tarble's  case,  13  Wall,  397, 
409.)  If  a  party  thus  held  be  illegally  imprisoned,  it  is  for 
the  courts  or  judicial  officers  of  the  United  States,  and  those 
courts  or  officers  alone,  to  grant  him  release.  (Tarble's  case, 
13  Wall.,  397,  411.) 

SECTION  III. 

RETURN  TO  WRIT  ISSUED  BY  STATE  COURT. 

478.  To  SHOW  AUTHORITY  FOR  RESTRAINT. — The  return 
should  be  sufficient  in  its  detail  of  facts  to  show  distinctly 
that  the  imprisonment  is  under  the  authority,  or  claim  and 
color  of  the  authority,  of  the  United  States  and  to  exclude 
the  suspicion  of  imposition  or  oppression  on  the  part  of  the 
officer  making  the  return.  The  process  or  orders  under 
which  the  petitioner  is  held  should  be  produced  with  the 
return  and  submitted  to  inspection  in  order  that  the  court 
ox  the  jucjge  issuing  the  writ  may  see  that  the  officer  is 
Acting  in  good  faith,  under  the  authority  or  claim  and  color 
of  authority  of  the  United  States,  and  not  under  the  mere 
pretense  of  having  such  authority.  (Tarble's  case,  13  WalL, 
397,  409 ;  Covell  v.  Heyinan,  111  U.  S.,  176, 183.) 

(a)  Witness  Held  Under  ~W  arrant  of  Attachment. — Where 
the  petitioner  is  a  civilian  who  has  been  apprehended  under 
a  warrant  of  attachment  to  be  taken  before  a  court-martial 
U>  testify  as  a  witness,  the  officer  making  the  return  to  the 
writ  issued  by  a  State  court  or  judge  will  not  produce  the 
body,  but  will,  by  his  return,  set  forth  fully  the  authority 
by  which  he  holds  the  person  and  allege  that  the  State 
court,  or  judge,  issuing  the  writ  is  without  jurisdiction  to 


476 


HABEAS   CORPUS.  If    479 

issue  the  same  and  ask  to  have  it  dismissed.  He  will  ex- 
hibit to  the  court  or  judge  issuing  the  writ  of  habeas  corpus 
the  warrant  of  attachment  and  the  subpoena  (and  the  proof 
of  service  of  the  subpoena)  on  which  the  warrant  of  at- 
tachment was  based,  and  also  a  certified  copy  of  the  order 
convening  the  court-martial  before  which  the  witness  was 
subpoenaed  to  testify,  together  with  a  copy  of  the  charges 
and  specifications  in  the  case  in  which  he  was  subpoenaed 
to  testify,  and  an  affidavit  showing  that  the  witness  has 
failed  to  appear  in  response  to  such  subpoena. 

NOTE. — For  form  of  return  see  Form  B,  Appendix  22. 
(b)  Enlisted  Man  or  General  Prisoner. — The  return  to 
a  writ  of  habeas  corpus  issued  by  a  State  court  or  judge  to 
produce  an  enlisted  man  or  a  general  prisoner  and  show  cause 
for  his  detention  will  show  in  writing  that  the  subject  of 
the  writ  is  a  duly  enlisted  soldier  of  the  United  States  or  a 
general  prisoner,  as  the  case  may  be,  and  set  forth  fully 
the  cause  of  his  detention,  but  the  officer  making  the  return 
will  decline  to  produce  in  court  the  body  of  the  prisoner 
named  in  the  writ,  giving  as  a  reason  for  such  refusal  the 
fact  that  the  Supreme  Court  of  the  United  States  has  de- 
cided that  a  State  court  or  judge  has  no  jurisdiction  in  such 
a  case. 

NOTE. — For  form  of  return  see  Form  D,  Appendix  22.  A  deserter 
apprehended  by  a  civil  officer  authorized  by  a  statute  of  the  United 
States  to  apprehend  deserters  is  in  the  custody  of  the  United  States. 
(See  U.  S.  v.  Reaves,  126  Fed.  Rep.,  127.) 

SECTION  IV. 
RETURN  TO  WRIT  ISSUED  BY  A  UNITED  STATES  COURT. 

479.  CONTENTS. — A  writ  of  habeas  corpus  issued  by  a 
United  States  court  or  judge  will  be  promptly  obeyed.  The 
person  alleged  to  be  illegally  restrained  of  his  liberty  will  be 
taken  before  the  court  from  which  the  writ  has  issued  and  a 
return  made,  setting  forth  the  reasons  for  his  restraint.  The 
officer  upon  whom  such  writ  is  served  will  at  once  report  the 
fact  of  such  service  by  telegraph  direct  to  The  Adjutant 
General  of  the  Army  and  the  commanding  general  of  the 


477 


^f    480  CHAPTER  XIX. 

corps  area  or  department,  stating  briefly  the  grounds   on 
which  the  release  of  the  party  is  sought. 

NOTE. — For  form  where  a  civilian  witness  is  held  under  warrant  of 
attachment,  see  Form  A,  Appendix  22.  For  form  where  an  enlisted 
man  or  general  prisoner  is  held,  see  Form  G,  Appendix  22.  For  brief 
of  authorities  when  writ  is  applied  for  on  grounds  of  age,  see  Ap- 
pendix 22. 

SECTION  V. 
WRIT  ISSUED  IN  THE  PHILIPPINE  ISLANDS. 

480.  WHEN  RETURN  CONCLUSIVE. — It  shall  be  a  conclusive 
answer  to  a  writ  of  habeas  corpus  against  a  military  officer  or 
soldier  and  a  sufficient  excuse  for  not  producing  the  prisoner 
if  the  commanding  general  or  any  general  officer  in  command 
of  the  department  or  district  shall  certify  that  the  prisoner 
is  held  by  him  either — 

(a)  As  a  prisoner  of  war;  or 

(b)  As  a  member  of  the  Army,  civilian  employee  thereof, 
or  a  camp  follower  and  subject  to  its  discipline ;  or 

(c)  As  a  prisoner  guilty  of  violation  of  the  laws  of  war 
committed  in  any  unpacified  province  or  territory  and  who 
has  escaped  into  provinces  officially  declared  to  be  under  civil 
control  and  has  been  there  captured  by  military  authorities 
and  is  held  for  trial  for  such  violations  of  the  laws  of  war. 

NOTE. — Section  1,  Act  No.  272,  Philippine  Commission,  October  21, 
1901,  and  section  4,  Act  No.  421,  id.,  June  23,  1902.  Respectful  return 
in  writing  will  be  made  in  the  case  of  prisoners  who  may  be  exempted 
from  jurisdiction  by  the  provisions  of  these  acts  stating  the  facts  of 
the  case,  but  the  body  of  the  prisoner  will  not  be  produced.  In  all  other 
cases  the  return  will  be  made  and  the  body  produced  before  the  proper 
tribunal. 


478 


CHAPTER  XX. 

MISCELLANEOUS  AND  TRANSITORY  PROVISIONS. 

Section  I.  Miscellaneous  provisions:  Page. 

481.  Injuries  to  persons  or  property — Redress 479 

482.  Effects  of  deceased  persons — Disposition 481 

483.  Inquests 482 

484.  Removal  of  civil  suits 483 

485.  Complaints  of  wrongs 484 

486.  Articles  of  War— When  effective 484 

Section  II.  Transitory  provision: 

487.  Prior  offenses  subject  to  previous  laws 484 

SECTION  I. 
MISCELLANEOUS  PROVISIONS. 

481.  INJURIES  TO  PERSONS  OR  PROPERTY — REDRESS. — Article 
105  imposes  upon  a  commanding  officer,  upon  receipt  of  a 
complaint  that  damage  has  been  done  to  the  property  of  any 
person,  or  that  his  property  has  been  wrongfully  taken,  by 
any  person  subject  to  military  law,  the  duty  to  convene  a 
board  of  officers  consisting  of  any  number  from  one  to  three 
to  investigate  the  complaint.  The  article  provides  the  ad- 
ministrative machinery  by  which  money  reparation  for  acts 
of  waste,  spoil,  destruction,  or  depredation,  denounced  in 
A.  W.  89  as  offenses,  shall  be  made  effective.  The  article  is 
not  limited  to  the  injuries  covered  by  A.  W.  89,  but  includes 
also  other  forms  of  damage  to,  and  wrongful  taking  of,  prop- 
erty, including  negligent  injuries  thereto.  (Dig.  Ops.  J.  A. 
Cr.,  April,  1918,  p.  8.)  The  complaint  will  more  properly  be 
made  in  writing  by  the  injured  party  or  his  representative, 
and  should  set  forth  the  details  of  the  injury  and  be  sus- 
tained by  evidence  showing  it  to  be  meritorious  and  well 
founded;  and  this  evidence  may  also  properly  be  required 
to  be  exhibited  in  the  form  of  affidavits  or  written  statements. 
It  is  competent,  however,  for  a  commanding  officer,  apprised 

21358°— 20 31 

479 


«[[    481  CHAPTER  XX. 

by  the  report  of  any  person  in  the  military  service,  or  by  the 
oral  complaint  of  the  party  injured,  of  any  such  damage,  to 
proceed  with  the  investigation  as  here  outlined  in  case  of 
written  complaint  submitted  by  or  in  behalf  of  the  party  in- 
injured  and  supported  by  affidavits  or  written  statement. 
The  board  will  be  convened  with  the  least  practicable  delay, 
is  empowered  to  summon  witnesses,  examine  them  under  oath 
or  affirmation,  receive  depositions  or  other  documentary  evi- 
dence, and  assess  the  damages  against  the  person  or  persons 
determined  to  be  responsible  for  the  damage  or  wrongful 
taking.  The  board's  assessment  of  damages  is  subject  to  the 
approval  of  the  commanding  officer  and  an  assessment  thus 
approved  will  be  stopped  against  the  pay  of  the  offender. 
The  order  of  the  commanding  officer  directing  stoppages 
authorized  by  the  article  is  conclusive  on  any  disbursing 
officer  for  the  payment  by  him  to  the  injured  party  of  the 
stoppages. 

The  occasions  for  resorting  to  the  procedure  under  this 
article  are  more  frequent  in  a  period  pending  or  immediately 
succeeding  a  time  of  war,  or  during  field  operations  and 
maneuvers.  As  the  absolute  identity  of  the  guilty  parties 
can  not  always  be  determined,  the  article  further  provides 
that  in  such  a  case,  and  when  the  organization  or  detachment 
to  which  they  belong  is  known,  stoppages  to  the  amount  of 
damages  inflicted  may  be  made  and  assessed  in  such  propor- 
tion as  may  be  deemed  just  upon  the  individual  members 
thereof  who  are  shown  to  have  been  present  with  such  or- 
ganization, or  detachment  at  the  time  the  damages  com- 
plained of  were  inflicted,  as  determined  by  the  approved 
findings  of  the  board. 

The  guilty  parties  may  be  tried  and  punished  for  the  mili- 
tary offense  involved  in  his  and  their  act  under  A.  W.  89, 
quite  irrespectively  of  any  proceeding  for  the  reparation  of 
the  parties  injured  had  under  this  article.  A  trial,  however, 
will  preferably  be  first  ordered,  since,  if  reparation  be  sub- 
sequently sought  to  be  made,  the  commander  and  the  board 
will  have  the  benefit  of  any  material  facts  developed  upon 
the  original  investigation.  So,  if  the  accused  be  acquitted, 
such  acquittal  will  furnish  persuasive  but  not  necessarily 


480 


MISCELLANEOUS  AND  TRANSITORY  PROVISIONS.    5    482 

conclusive  ground  for  not  favorably  entertaining  the  com- 
plaint or  for  reducing  the  amount  to  be  assessed. 

482.  EFFECTS  OF  DECEASED  PERSON — DISPOSITION  OF. — In 
case  of  the  death  of  any  person  subject  to  military  law,  the 
commanding  officer  of  the  place  of  command  will  permit  the 
legal  representative  or  widow  of  the  deceased,  if  present,  to 
take  possession  of  all  his  effects  then  in  camp  or  quarters; 
and  if  no  legal  representative  or  widow  be  present,  the  com- 
manding officer  shall  direct  a  summary  court  to  secure  all 
such  effects,  and  said  summary  court  shall  have  authority  to 
collect  and  receive  any  debts  due  decedent's  estate  by  local 
debtors  and  to  pay  the  undisputed  local  creditors  of  decedent  in 
so  far  as  any  money  belonging  to  tire  deceased  which  may  come 
into  said  summary  court's  possession  under  this  article  will  per- 
mit, taking  receipts  therefor  for  file  with  said  court's  final  report 
upon  its  transactions  to  the  War  Department;  and  as  soon  as 
practicable  after  the  collection  of  such  effects  said  summary 
court  shall  transmit  such  effects  and  any  money  collected, 
through  the  Quartermaster  Department,  at  Government  ex- 
pense, to  the  widow  or  legal  representative  of  the  deceased,  if 
such  be  found  by  said  court  or  to  the  son,  daughter,  father, 
provided  the  father  has  not  abandoned  the  support  of  his  family, 
mother,  brother,  sister,  or  next  of  kin  in  the  order  named,  if 
such  be  found  by  said  court,  or  the  beneficiary  named  in  the 
will  of  the  deceased,  if  such  be  found  by  said  court,  and  said 
court  shall  thereupon  make  to  the  War  Department  a  full  re- 
port of  its  transactions ;  but  if  there  be  none  of  the  persons 
hereinabove  named,  or  such  persons  or  their  addresses  are  not 
known  to,  or  readily  ascertainable  by  said  court,  and  the  said 
court  shall  so  find,  said  summary  court  shall  have  authority 
to  convert  into  cash,  by  public  or  private  sale,  not  earlier  than 
thirty  days  after  the  death  of  the  deceased,  all  effects  of  the 
deceased  except  sabers,  insignia,  decorations,  medals,  watches, 
trinkets,  manuscripts,  and  other  articles  valuable  chiefly  as 
keepsakes;  and  as  soon  as  practicable  after  converting  such 
effects  into  cash  said  summary  court  shall  deposit  with  the 
proper  officer,  to  be  designated  in  regulations,  any  cash  be- 
longing to  decedent's  estate,  and  shall  transmit  a  receipt  for 
such  deposits,  any  will  or  other  papers  of  value  belonging  to 


481 


^    483  CHAPTER   XX. 

the  deceased,  any  sabers,  insignia,  decorations,  medals, 
watches,  trinkets,  manuscripts,  and  other  articles  valuable 
chiefly  as  keepsakes,  together  with  an  inventory  of  the  ef- 
fects secured  by  said  summary  court,  and  a  full  account  of  its 
transactions,  to  the  War  Department  for  transmission  to  the 
Auditor  for  the  War  Department  for  action  as  authorized  by 
law  in  the  settlement  of  the  accounts  of  deceased  officers  and 
enlisted  men  of  the  Army. 

The  provisions  of  this  article  shall  be  applicable  to  inmates 
of  the  United  States  Soldiers'  Home  who  die  in  any  United 
States  military  hospital  outside  of  the  District  of  Columbia 
where  sent  from  the  home  for  treatment.  (A.  W.  112.) 

483.  INQUESTS. — Article  113  imposes  upon  the  summary 
court-martial  the  principal  duties  of  the  office  of  coroner  at 
common  law,  viz,  to  investigate  the  cause  of  sudden,  violent, 
and  unnatural  deaths.  When  a  person  is  found  dead  at  a 
place  described  in  the  article,  and  there  is  reasonable  belief 
that  his  death  has  occurred  from  violence  or  other  unlawful 
means,  the  commanding  officer  will  immediately  designate 
and  direct  a  summary  court-martial  to  investigate  the  cir- 
cumstances attending  the  death,  to  the  end  that  the  cause 
thereof  may  be  determined  and  the  persons  criminally  re- 
sponsible therefor  may  be  brought  to  justice.  The  summary 
court-martial  will  with  the  least  practicable  delay  view  the 
body  of  the  deceased  and  summon  and  examine,  under  oath  or 
affirmation,  such  witnesses  as  may  have  knowledge  of  the 
cause  and  circumstances  of  the  death.  The  summary  court- 
martial  should  warn  every  person  testifying  at  the  inquest 
who  is  accused  or  suspected  that  he  is  not  required  to  give  evi- 
dence incriminating  himself,  and  that  any  statement  or  evi- 
dence he  gives  may  be  used  against  him  in  the  event  of  any 
further  proceedings  being  instituted.  If  expert  medical 
testimony  is  necessary,  the  commanding  officer  will,  at  the 
request  of  the  summary  court-martial,  direct  a  medical 
officer  to  make  such  examination  of  the  body  of  the  deceased 
as  may  be  necessary  and  to  appear  as  a  witness  at  the  inquest. 
The  testimony  of  each  witness  will  be  reduced  to  writing,  and 
will,  except  when  stenographically  reported,  be  subscribed 
by  him,  and  will  be  appended  to  the  report  of  the  inquest. 


482 


MISCELLANEOUS  AND  TRANSITORY  PROVISIONS.    ^   484 

If  the  body  of  the  deceased  shows  wounds  or  bruises  such 
as  to  indicate  or  create  suspicion  that  he  came  to  his  death 
by  violent  means,  it  shall  be  the  duty  of  the  summary  court- 
martial  to  ascertain  with  as  much  exactness  as  possible  the 
precise  nature  of  the  wounds  or  blows  and  the  character  of 
the  instrument  by  which  the  wounds  were  inflicted ;  the  per- 
son or  persons  by  whom  the  fatal  blow  or  blows  were  dealt ; 
if  there  were  any  aiders  or  abettors ;  and  such  other  particu- 
lars as  may  afford  the  means  of  drawing  up,  with  the  pre- 
cision required  by  law,  the  necessary  charges  and  specifica- 
tions against  the  person  or  persons  accused  of  the  homicide. 

The  summary  court  officer  will  render  a  written  report  of 
his  investigation  to  the  post  or  other  commanding  officer, 
which  report  will  state  his  finding  as  to  the  cause  of  the  death 
and  the  names  of  the  persons  criminally  responsible  therefor, 
if  in  his  opinion  there  be  any  such.  Such  persons,  though 
not  subject  to  military  law,  may,  if  found  at  any  post  over 
which  the  United  States  has  exclusive  jurisdiction,  be  con- 
fined by  the  commanding  officer  for  such  time  as  may  be  neces- 
sary for  their  delivery  to  the  civil  authorities.  If  such  per- 
sons are  subject  to  military  law  and  appear  to  be  guilty  of  an 
offense  not  triable  by  court-martial,  they  will  be  confined  by 
the  commanding  officer,  who  will  immediately  furnish  the 
proper  United  States  district  attorney  with  a  copy  of  the 
findings  of  the  summary  court  officer. 

If  the  person  over  whose  body  the  inquest  is  held  is  not 
identified  as  an  officer  or  soldier,  the  report  of  the  summary 
court-martial  shall  give  a  description  of  the  deceased,  which 
shall  specify  the  name,  if  known,  the  apparent  age,  the  sex, 
the  color  of  the  eyes  and  hair,  and  all  marks  or  other  par- 
ticulars which  may  assist  in  the  identification  of  the  person. 

NOTE. — For  form  of  report  of  inquest  see  Appendix  26. 

484.  REMOVAL  OF  CIVIL  SUITS. — When  any  civil  suit  or 
criminal  prosecution  is  commenced  in  any  court  of  a  State 
against  any  officer,  soldier,  or  other  person  in  the  military 
service  of  the  United  States  on  account  of  any  act  done  under 
color  of  his  office  or  status,  or  in  respect  to  which  he  claims 
any  right,  title,  or  authority  under  any  law  of  the  United 
States  respecting  the  military  forces  thereof,  or  under  the 


483 


If    485  CHAPTER  XX. 

law  of  war,  such  suit  or  prosecution  may  at  any  time  before 
the  trial  or  final  hearing  thereof  be  removed  for  trial  into  the 
district  court  of  the  United  States  in  the  district  where  the 
same  is  pending  in  the  manner  prescribed  in  section  33  of  the 
act  entitled  "An  act  to  codify,  revise,  and  amend  the  laws 
relating  to  the  judiciary,"  approved  March  3,  1911  (36  Stat. 
1097),  and  the  cause  shall  thereupon  be  entered  on  the  docket 
of  said  district  court  and  shall  proceed  therein  as  if  the  cause 
had  been  originally  commenced  in  said  district  court-  and  the 
same  proceedings  had  been  taken  in  such  suit  or  prosecution 
in  said  district  court  as  shall  have  been  had  therein  in  said 
State  court  prior  to  its  removal,  and  said  district  court 
shall  have  full  power  to  hear  and  determine  said  cause. 
(A.  W.  117.) 

485.  COMPLAINTS  OF  WRONGS. — Any  officer  or  soldier  who 
believes  himself  wronged  by  his  commanding  officer,  and, 
upon  due  application  to  such  commander,  is  refused  redress, 
may  complain  to  the  general  commanding  in  the  locality 
where  the  officer  against  whom  the  complaint  is  made  is  sta- 
tioned.    The  general  shall  examine  into  said  complaint  and 
take  proper  measures  for  redressing  the  wrong  complained 
of;  and  he  shall,  as  soon  as  possible,  transmit  to  the  Depart- 
ment of  War  a  true  statement  of  such  complaint,  with  the 
proceedings  had  thereon.     (A.  W.  121.) 

486.  ARTICLES  OF  WAR — WHEN  EFFECTIVE. — Chapter  II  of 
the  act  of  Congress  entitled  "An  act  to  amend  an  act  entitled 
'An  act  for  making  further  and  more  effectual  provision  for  the 
national  defense,  and  for  other  purposes,'  approved  June  3,  1916, 
and  to  establish  military  justice,"  approved  June  4,  1920,  repeals 
section  1342  of  the  Revised  Statntes  of  the  United  States  and 
contains  the  Articles  of  War.    It  is  provided  by  section  2  of  the 
act  cited  that  the  provisions  of  Chapter  II  of  that  act  shall  take 
effect  and  be  in  force  eight  months  after  the  approval  of  that 
act:  Provided,  That  articles  2,  23,   and  45   shall  take  effect 
immediately. 

SECTION  II. 

TRANSITORY  PROVISION. 

487.  PRIOR  OFFENSES  SUBJECT  TO  PREVIOUS  LAWS. — It  is 
provided  by  section  3  of  the  act  of  Congress  entitled  "An  act  to 


484 


MISCELLANEOUS  AND  TRANSITORY  PROVISIONS.    ^   487 

amend  an  act  entitled  'An  act  for  making  further  and  more 
effectual  provision  for  the  national  defense  and  for  other  pur- 
poses,' approved  June  3,  1916,  and  to  establish  military  justice," 
approved  June  4,  1920,  that  all  offenses  committed  and  all  penal- 
ties, forfeitures,  fines,  or  liabilities  incurred  prior  to  the  taking 
effect  of  Chapter  II  of  that  act,  under  any  law  embraced  in  or 
modified,  changed,  or  repealed  by  Chapter  II  of  that  act,  may  be 
prosecuted,  punished,  and  enforced  in  the  same  manner  and  with 
the  same  effect  as  if  that  act  had  not  been  passed. 


485 


APPENDICES. 


1.  THE  ARTICLES  OF  WAR. 

2.  SYSTEM   OF   COURTS-MARTIAL   FOB  NATIONAL  GUARD   NOT  IN   TEM 

SERVICE  OF  THE  UNITED  STATES. 

3.  FORM  OF  ORDER  APPOINTING  A  GENERAL  COURT-MARTIAL. 

4.  FORM  OF  ORDER  APPOINTING  A  SPECIAL  COURT-MARTIAL. 

5.  CHARGE  SHEET. 

6.  FORMS  OF  CHARGES. 

7.  FORMS   FOR   SYNOPSES   OF   CONVICTIONS   BY   COURT-MARTIAL    (FO» 

ENTRY  IN  SERVICE  RECORD). 

8.  SUGGESTIONS  FOR  TRIAL  JUDGE  ADVOCATES. 

9.  FORMS  FOR  USE  OF  PRESIDENT  AND  LAW  MEMBER. 

10.  FORM  FOB  RECORD — GENERAL  COURT-MARTIAL  AND  REVISION   PBO- 

CEEDINGS. 

11.  FORM  FOR  RECORD — SPECIAL  COURT-MARTIAL. 

12.  FORM  FOR  RECORD — SUMMARY  COURT-MARTIAL. 

13.  FORMS  FOR  SENTENCES. 

14.  FORMS  FOR  SYNOPSES  OF  SENTENCES. 

15.  FORMS  FOR  ACTION  BY  REVIEWING  AUTHORITY. 

16.  COURT-MARTIAL  ORDERS: 

(a)  GENERAL  COURT-MARTIAL. 
(&)  SPECIAL  COURT-MARTIAL. 

17.  FORM  FOR  INTERROGATORIES  AND  DEPOSITION. 

18.  FORM  OF  REPORT  OF  INVESTIGATING  OFFICER. 

19.  SUBPCENA  FOR  CIVILIAN  WITNESS. 

20.  WARRANT  OF  ATTACHMENT. 

21.  GENERAL  ORDER  No.  1,  WAR  DEPARTMENT,  DECEMBEB  1,  1920 — EX- 

EMPTIONS OF  CERTAIN  CLASSES  FROM  JURISDICTION  OF  SPECIAL  AND 
SUMMARY  COURTS-MARTIAL. 

22.  RETURNS  AND  BRIEFS  IN  HABEAS  CORPUS  PROCEEDINGS. 

23.  VOUCHER:  CIVILIAN  WITNESS  NOT  IN  GOVERNMENT  EMPLOY. 

24.  VOUCHER  :  CIVILIAN  WITNESS  IN  GOVERNMENT  EMPLOY. 

25.  VOUCHER:  PERSONAL  SERVICES,  REPORTER. 

26.  REPORT  OF  INQUEST. 

27.  LIST  OF  COMMON  ERRORS  TO  BE  AVOIDED. 


486a 


APPENDIX  1. 
THE  ARTICLES  OF  WAR. 

(CHAPTER  II.  ACT  OF  JUNE  4,  1920,  41  STAT.  787.) 


TABLE  OF  CONTENTS. 

I.  PRELIMINABY  PROVISIONS: 

Art.  1.  Definitions. 

Art.  2.  Persons  subject  to  military  law. 
II.  COUBTS-MABTIAJL  : 

Art  3.  Courts-martial  classified. 
(a)  Composition — 

Art.  4.  Who  may  serve  on  courts-martial. 

Art.  5.  General  courts-martial. 

Art  6.  Special  courts-martial. 

Art.  7.  Summary  courts-martiaL 
(6)  By  whom  appointed — 

Art.  8.  General  courts-martial. 

Art.  9.  Special  courts-martial. 

Art   10.  Summary   courts-martial. 

Art.  11.  Appointment  of  trial  judge  advocates  and  counsel. 

(c)  Jurisdiction — 

Art  12.  General  courts-martial. 
Art.  13.  Special  courts-martial. 
Art  14.  Summary  courts-martial. 
Art.  15.  Not  exclusive. 
Art.  16.  Officers,  how  triable. 

(d)  Procedure — 

Art  17.  Trial  judge  advocate  to  prosecute;  counsel  to  de- 
fend. 

Art.  18.  Challenges. 
Art  19.  Oaths. 
Art  20.  Continuances. 
Art.  21.  Refusal  or  failure  to  plead. 
Art.  22.  Process  to  obtain  witnesses. 
Art.  23.  Refusal  to  appear  or  testify. 
Art.  24.  Compulsory  self-mcrimination  prohibited. 
Art.  25.  Depositions — when  admissible. 
Art.  26.  Depositions — before  whom  taken. 
Art  27.  Courts  of  inquiry — records  of — when  admissible. 
Art.  28.  Certain  acts  to  constitute  desertion. 
Art  29.  Court  to  announce  action. 
Art.  30.  Closed  sessions. 


487 


APPENDIX  1. 

II.  COURTS-MARTIAL — Continued. 

(d)  Procedure — Continued. 

Art.  31.  Method  of  voting. 
Art.  32.  Contempts. 

Art.  33.  Records — general  courts-martial. 
Art.  34.  Records — special  and  summary  courts-martial. 
Art.  35.  Disposition  of  records — General  courts-martial. 
Art.  36.  Disposition  of  records — special  and  summary  courts- 
martial. 

Art.  37.  Irregularities — effect  of. 
Art.  38.  President  may  prescribe  rules. 

(e)  Limitations  upon  prosecutions — 

Art.  39.  As  to  time. 

Art.  40.  As  to  number. 
(/)  Punishments — 

Art.  41.  Cruel  and  unusual  punishments  prohibited. 

Art.  42.  Places  of  confinement — when  lawful. 

Art.  43.  Death  sentence — when  lawful. 

Art.  44.  Cowardice;  fraud;  accessory  penalty. 

Art.  45.  Maximum  limits. 
(g)  Action  by  appointing  or  superior  authority — 

Art.  46.  Action  by  convening  authority. 

Art.  47.  Powers  incident  to   power   to  approve. 

Art.  48.  Confirmation — when  required. 

Art.  49.  Powers  incident  to  power  to  confirm. 

Art.  50.  Mitigation  or  remission  of  sentences. 

Art.  50^.  Review;  rehearing. 

Art.  51.  Suspension  of  sentences  of  dismissal  or  death. 

Art.  52.  Suspension  of  sentences. 

Art.  53.  Execution  or  remission;  confinement  in  disciplin- 
ary barracks. 
Ill,  PUNITIVE  ARTICLES: 

(a)  Enlistments;  muster;  returns-* 

Art.  54.  Fraudulent  enlistment. 

Art.  55.  Officer  making  unlawful  enlistment. 

Art.  56.  False  muster. 

Art.  57.  False  returns — omission  to  render  returns. 
(&)  Desertion;  absence  without  leave — 

Art.  58.  Desertion. 

Art.  59.  Advising  or  aiding  another  to  desert. 

Art.  60.  Entertaining  a  deserter. 

Art.  61.  Absence  without  leave, 
(c)  Disrespect;  insubordination;  mutiny — 

Art.  62.  Disrespect  toward  the  President,  Vice  President, 
Congress,  Secretary  of  War,  governors,  legisla- 
tures. 

Art.  63.  Disrespect  toward  superior  officers. 

Art  64.  Assaulting  or  willfully  disobeying  superior  officer. 

488 


THE  ARTICLES   OF  WAR. 

III.  PUNITIVE  ARTICLES — Continued. 

(c)  Disrespect;  insubordination;  Mutiny — Continued. 

Art.  65.  Insubordinate    conduct    toward    noncommissioned 

officer. 

Art.  66.  Mutiny  or  sedition. 
Art.  67.  Failure  to  suppress  mutiny  or  sedition. 
Art.  68.  Quarrels ;  frays ;  disorders. 

(d)  Arrest;  confinement — 

Art.  69.  Arrest  or  confinement. 

Art.  70.  Charges ;  action  upon. 

Art.  71.  Refusal  to  receive  and  keep  prisoners. 

Art.  72.  Report  of  prisoners  received. 

Art.  73.  Releasing  prisoner  without  proper  authority. 

Art.  74.  Delivery  of  offenders  to  civil  authorities. 

(e)  War  offenses — 

Art.  75.  Misbehavior  before  the  enemy. 
Art.  76.  Compelling  commander  to  surrender. 
Art.  77.  Improper  use  of  countersign. 
Art.  78.  Forcing  a  safeguard. 

Art.  79.  Captured  property  to  be  secured  for  public  service. 
Art  80.  Dealing  in  captured  or  abandoned  property. 
Art.  81.  Relieving,  corresponding  with,  or  aiding  the  enemy. 
Art.  82.  Spies. 
{/)  Miscellaneous  crimes  and  offenses — 

Art.  83.  Military  property — willful  or  negligent  loss,  damage, 

or  wrongful  disposition. 
Art.  84.  Waste  or  unlawful  disposition  of  military  property 

issued  to  soldiers. 
Art.  85.  Drunk  on  duty. 
Art.  86.  Misbehavior  of  sentinel. 
Art.  87.  Personal  interest  in  sale  of  provisions. 
Art.  88.  Intimidation  of  persons  bringing  provisions. 
Art.  89.  Good  order  to  be  maintained  and  wrongs  redressed. 
Art.  90.  Provoking  speeches  or  gestures. 
Art.  91.  Dueling. 
Art.  92.  Murder — rape. 
Art.  93.  Various  crimes. 
Art.  94.  Frauds  against  the  Government. 
Art.  95.  Conduct  unbecoming  an  officer  and  gentleman. 
Art.  96.  General  article. 

IV.  COURTS  OF  INQUIRY: 

Art.  97.  When  and  by  whom  ordered. 

Art.  98.  Composition. 

Art.  99.  Challenges. 

Art.  100.  Oath  of  members  and  recorder. 

Art.  101.  Powers ;  procedure. 

Art  102.  Opinion  on  merits  of  case. 

Art.  103.  Record  of  proceedings — how  authenticated. 

489 


APPENDIX   1. 


V.  MISCELLANEOUS 
Art.  104. 
Art.  105. 
Art.  106. 
Art.  107. 
Art.  108. 
Art.  109. 
Art.  110. 
Art.  111. 
Art.  112. 
Art.  113. 
Art.  114. 
Art.  115. 
Art.  116, 

Art.  117. 

Art.  118. 
Art.  119. 

Art.  120. 
Art.  121. 


PROVISIONS  : 

Diselipinary  powers  of  commanding  officers. 
Injuries  to  property — redress  of. 
Arrest  of  deserters  by  civil  officials. 
Soldiers  to  make  good  time  lost. 
Soldiers — separation  from  the  service. 
Oatli  of  enlistment. 

Certain   articles  to  he  read  arid   explained. 
Copy  of  record  of  trial. 

Effects  of  deceased  persons — disposition  of. 
Inquests. 

Authority  to  administer  oaths. 
Appointment  of  reporters   and  interpreters. 
Powers  of  assistant  trial  judge  advocate  and  of 
assistant  defense  counsel. 
Removal  of  civil  suits. 
Officers — separation  from  service. 
Rank   and   precedence   among   Regulars,   Militia, 
and  Volunteers. 

Command  when  different  corps  or  commands  hap- 
pen to  join. 
Complaints  of  wrongs. 


NUMBERING  OF  ARTICLES  OF  WAR — CODE  OF  1920  AND  EARLIER 

CODES. 

The  present  Articles  of  War  are  herein  referred  to  as  the  Code 
of  1920. 

(a)  Code  of  1920  and  code  of  191£. 

The  Code  of  1920  retains  the  numbering  of  the  Articles  of 
War  contained  in  the  code  of  1916,  except  that: 

(1)  Article  29  of  the  code  of  1916  is  the  second  para- 

graph of  article  28  of  the  code  of  1920. 

(2)  Article  29  of  the  code  of  1920  is  new.     ("  Court  to 

announce  action.") 

(3)  Article  50-J  of  code  of  1920  is  new.     ("  Review;  re- 

hearing.") 

NOTE. — The  following  articles  contain  new  matter  of  substance  not 
in  Articles  of  1916  or  omit  similar  matter  which  was  therein : 


2 

21 

38 

67 

94 

4 

23 

40-43 

C8-70 

104 

5 

24 

45-50 

75 

112 

6 

27 

50i 

76 

116 

8 

28-33 

52 

81 

119 

11-19 

36 

66 

93 

490 


THE   ARTICLES  OF  WAR. 

Articles  not  appearing  in  the  above  list  are  either  identical  with  the 
corresponding  articles  iu  the  Code  of  1916  or  merely  differ  in  details 
not  affecting  the  substance  (e.  g.,  the  word  "  trial "  has  been  inserted 
in  several  sections  before  the  words  "  judge  advocate  "  for  the  sake 
of  clarity). 

(b)  The  relationship  of  the  numbering  of  the  articles  in  the 
code  of  1916  to  the  prior  code  of  1874  and  its  various  amend- 
ments is  shown  in  the  following  table : 

TABLE  SHOWING  NUMBERS  OF  ARTICLES  IN  THE  CODE  OF 
1874  AND  AMENDMENTS  (OLD  CODE),  AND  OF  CORRESPOND- 
ING ARTICLES  IN  THE  CODE  OF  1916. 

ouo  CODE:  AND  CODE  OF  i9ic. 


Old 
number. 

Code  of 
1916. 

Old 
number. 

Code  of 
1916. 

Old 
number. 

Code  of 
1916. 

Old 

number. 

Code  of 
1916. 

1 

H 

61 

63 

2 

96 

43 

2 
3 

4 
5 

109,110  . 
55 
108 
56 

33 
34 

35 
36 

61 
61 
61 

64 
65 
66 
67 

2 
69 
69 
71 

97 

98 
99 

100 

42 
41 
118 
44 

6 

56 

37 

68 

72 

101 

7 
8 
9 
10 

57 
57 
79 

38 
39 
40 
41 

41,  85 
86 
61 
75 

69 
70 
71 
172 

73 
70 
70 
8 

102 
103 
104 
105 

40 
39 
46 
48 

11 

42 

75 

173 

8 

106 

48 

12 
13 

14 

56 
56 
56 

43 
44 
45 

76 
77 
81 

74 

'75 
76 

11 
5 

107 
108 
109 

48 
48 
46 

15 
16 
17 
M 
19 
20 
21 

83 

84 
84 
87 
62 
G3 
64 

46 
47 

48 
49 
50 
51 
52 

81 

58 
107 
28 
29,60 
59 

77 

78 
79 
181 
182 
183 
84 

4 
4 
16 
6,9,13 
6,9  13 
13  14 
19 

111 
112 
113 
114 
115 
116 
117 

51 
50 

35 
111 
97 
98 
100 

22 

66 

53 

85 

19 

118 

101 

23 

24 

67 

68 

54 
55 

89,105 
89  105 

86 
87 

82 

119 
120 

102 
103 

25 
26 
27 
28 
29 
30 
31 

90 
91 
91 
91 
121 
121 
61 

56 
57 
58 
59 
60 
61 
62 

88 
78 
92,93 
74 
2,94 
95 
93,96 

88 
89 
90 
91 
92 
93 
95 

18 
21 
17 
25 
19 
20,70 
31 

121 
122 
124 
125 
126 
127 
128 

27 
120 
119 
112 
112 
112 
110 

*  Old  articles  72,  73,  75,  81,  82,  and  83  were  replaced  by  the  act  of  Mar.  2. 1913  (37  Stat.,  723), 
effective  July  1,  1913. 

NOTE.— The  Code  of  1920  (except  arts.  2,  23,  and  45,  which  took 
effect  on  June  4,  1920)  becomes  effective  on  February  4,  1921. 

ARTICLES  OF  WAR. 

These  new  Articles  of  War  comprise,  as  above  stated,  the  substance 
of  the  former  Articles  of  War,  as  revised  by  the  act  approved  August 
29,  1916  (39  Stat  619),  referred  to  as  the  Code  of  1916,  as  amended 
by  the  acts  of  Congress  approved  July  9,  1918  (40  Stat.  882),  with 
reference  to  articles  52,  53,  and  57;  February  28,  1919  (40  Stat. 


491 


APPENDIX  1. 

1211),  with  reference  to  article  50;  and  November  19,  1919  (41  Stat 
356),  with  reference  to  article  112;  all  of  which  were  repealed  by  the 
present  code  (see  sec.  4,  Chap.  II,  act  of  June  4,1920;  41  Stat.  812). 

The  existing  amendments  to  the  Code  of  1916  as  set  forth  in  the 
acts  approved  July  9,  1918  (arts.  52,  53,  57),  February  28,  1919  (art 
50),  and  November  19,  1919  (art.  112),  are  printed  in  italics,  and  the 
changes  made  by  the  Code  of  1920  are  printed  in  bold-faced  type. 
The  matter  existing  as  contained  in  the  Code  of  1916  is  printed  in 
the  ordinary  roman  type. 

Where  matter  appearing  in  a  former  article  has  been  omitted  in  the 
new  article,  reference  is  made  thereto  in  a  note  following  the  new 
article,  and  where  the  new  article  is  so  changed  in  substance  or  form 
that  it  is  impossible  clearly  to  indicate  the  changes  in  this  matter,  the 
old  article,  or  as  much  of  it  as  necessary,  is  reproduced  in  the  note.  It 
is  therefore  possible  in  every  case  where  the  former  article,  as  it  existed 
immediately  prior  to  the  taking  effect  of  the  Code  of  1920,  is  not  given 
in  a  note,  to  reconstruct  the  same  by  omitting  the  matter  in  bold-faced 
type  in  the  new  article  and  making  the  changes  to  the  remaining  text 
called  for  by  the  note. 

The  article  numbers  in  the  new  code  correspond  to  those  of  the  Code 
of  1916,  except  that,  as  above  stated,  article  29,  Code  of  1916,  is  in 
new  article  28,  and  articles  29  and  50J,  Code  of  1920,  are  entirely 
new. 

An  index  follows  the  text  of  the  articles. 

An  Act  To  amend  an  Act  entitled  "An  Act  for  making  further  and 
more  effectual  provision  for  the  national  defense,  and  for  other 
purposes,"  approved  June  3,  1916,  and  to  establish  military  justice. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled. 


CHAPTER  II. 

The  articles  included  in  this  section  shall  bo  known  as  the 
Articles  of  War  and  shall  at  all  times  and  in  all  places  govern 
the  armies  of  the  United  States. 

I.  PRELIMINARY  PROVISIONS. 

ARTICLE  1.  DEFINITIONS.  —  The  following  words  when  used 
in  these  articles  shall  be  construed  in  the  sense  indicated  in 
this  article,  unless  the  context  shows  that  a  different  sense  is 
intended,  namely  : 

(a)  The  word  "officer"  shall  be  construed  to  refer  to  a 
commissioned  officer  ; 

492 


THE  ARTICLES   OF  WAR.  ART.   2 

(b)  The  word  "soldier"  shall  be  construed  as  including 
a  noncommissioned  officer,  a  private,  or  any  other  enlisted 
man; 

(c)  The  word  "  company  "  shall  be  understood  as  includ- 
ing a  troop  or  battery ;  and 

(d)  The  word  "battalion"  shall  be  understood  as  includ- 
ing a  squadron. 

ART.  2.  PERSONS  SUBJECT  TO  MILITARY  LAW. — The  follow- 
ing persons  are  subject  to  these  articles  and  shall  be  under- 
stood as  included  in  the  term  "  any  person  subject  to  military 
law,"  or  "  persons  subject  to  military  law,"  whenever  used  in 
these  articles :  Provided,  That  nothing  contained  in  this  Act, 
except  as  specifically  provided  in  Article  2,  subparagraph 
(c),  shall  be  construed  to  apply  to  any  person  under  the 
United  States  "naval  jurisdiction  unless  otherwise  specifically 
provided  by  law. 

(a)  All  officers,  members  of  the  Army  Nurse  Corps,  warrant 
officers,  Army  field  clerks,  field  clerks  Quartermaster  Corps,  and 
soldiers  belonging  to  the  Regular  Army  of  the  United  States ; 
all  volunteers,  from  the  dates  of  their  muster  or  acceptance 
into   the   military    service    of    the    United    States;    and 
all  other  persons  lawfully  called,  drafted,  or  ordered  into,  or 
to  duty  or  for  training  in,  the  said  service,  from  the  dates 
they  are  required  by  the  terms  of  the  call,  draft  or  order  to 
obey  the  same ; 

(b)  Cadets; 

(c)  Officers  and  soldiers  of  the  Marine  Corps  when  de- 
tached for  service  with  the  armies  of  the  United  States  by 
order  of  the  President:  Provided,  That  an  officer  or  soldier 
of  the  Marine  Corps  when  so  detached  may  be  tried  by  mili- 
tary court-martial  for  an  offense  committed  against  the  laws 
for  the  government  of  the  naval  service  prior  to  his  detach- 
ment, and  for  an  offense  committed  against  these  articles  he 
may  be  tried  by  a  naval  court-martial  after  such  detachment 
ceases ; 

(d)  All  retainers  to  the  camp  and  all  persons  accompany- 
ing or  serving  with  the  armies  of  the  United  States  without 
the  territorial  jurisdiction  of  the  United  States,  and  in  time 
of  war  all  such  retainers  and  persons  accompanying  or  serv- 
ing with  the  armies  of  the  United  States  in  the  field,  both 

21358°— 20 32 


ART.  3  APPENDIX  1. 

within  and  without  the  territorial  jurisdiction  of  the  United 
States,  though  not  otherwise  subject  to  these  articles; 

(e)  All    persons    under    sentence    adjudged    by    courts- 
martial  ; 

(f )  All  persons  admitted  into  the  Regular  Army  Soldiers' 
Home  at  Washington,  District  of  Columbia. 

This  article  became  effective  on  June  4,  1920. 

II.  COURTS-MARTIAL. 

ART.  3.  COURTS-MARTIAL  CLASSIFIED. — Courts-martial  shall 
be  of  three  kinds,  namely : 
First,  general  courts-martial; 
Second,  special  courts-martial;  and 
Third,  summary  courts-martial. 

A.  COMPOSITION. 

ART.  4%  WHO  MAY  SERVE  ON  COURTS-MARTIAL. — All  officers 
in  the  military  service  of  the  United  States,  and  officers  of 
the  Marine  Corps  when  detached  for  service  with  the  Army 
by  order  of  the  President,  shall  be  competent  to  serve  on 
courts-martial  for  the  trial  of  any  persons  who  may  law- 
fully be  brought  before  such  courts  for  trial.  When  appoint- 
ing courts-martial  the  appointing  authority  shall  detail  as  mem- 
bers thereof  those  officers  of  the  command  who,  in  his  opinion, 
are  best  qualified  for  the  duty  by  reason  of  age,  training,  experi- 
ence, and  judicial  temperament;  and  officers  having  less  than 
two  years'  service  shall  not,  if  it  can  be  avoided  without  mani- 
fest injury  to  the  service,  be  appointed  as  members  of  courts- 
martial  in  excess  of  the  minority  membership  thereof. 

ART.  5.  GENERAL  COURTS- MARTIAL. — General  courts-martial 
may  consist  of  any  number  of  officers  not  less  than  five. 

Art.  5,  Code  of  1916,  read  following  word  "  officers  "  :  "  from  five  to  thirteen, 
Inclusive;  but  they  shall  not  consist  of  les%.  than  thirteen,  when  that  number 
can  be  convened  without  manifest  injury  to  the  service." 

ART.  6.  SPECIAL  COURTS-MARTIAL. — Special  courts-martial 
may  consist  of  tiny  number  of  officers  not  less  than  three. 

Art.  6,  Code  of  1916,  read  following  word  "  officers  "  :  "  from  three  to  five, 
inclusive." 

ART.  7,  SUMMARY  COURTS-MARTIAL. — A  summary  court- 
martial  shall  consist  of  one  officer. 

494 


THE  ARTICLES   OF  WAR.  ART.      10 

B.    BY  WHOM  APPOINTED. 

ART.  8.  GENERAL,  COURT-MARTIAL. — The  President  of  the 
United  States,  the  commanding  officer  of  a  territorial  division 
or  department,  the  Superintendent  of  the  Military  Academy, 
the  commanding  officer  of  an  army,  an  army  corps,  a  division, 
or  a  separate  brigade,  and,  when  empowered  by  the  President, 
the  commanding  officer  of  any  district  or  of  any  force  or  body 
of  troops  may  appoint  general  courts-martial ;  but  when  any 
such  commander  is  the  accuser  or  the  prosecutor  of  the  per- 
son or  persons  to  be  tried,  the  court  shall  be  appointed  by  su- 
perior competent  authority,  and  no  officer  shall  be  eligible  to 
sit  as  a  member  of  such  court  when  he  is  the  accuser  or  a  wit- 
ness for  the  prosecution. 

The  authority  appointing1  a  general  court-martial  shall  detail 
as  one  of  the  members  thereof  a  law  member,  who  shall  be  an 
officer  of  the  Judge  Advocate  General's  Department,  except  that 
when  an  officer  of  that  department  is  not  available  for  the  pur- 
pose the  appointing  authority  shall  detail  instead  an  officer  of 
some  other  branch  of  the  service  selected  by  the  appointing  au- 
thority as  specially  qualified  to  perform  the  duties  of  law  mem- 
ber. The  law  member,  in  addition  to  his  duties  as  a  member, 
shall  perform  such,  other  duties  as  the  President  may  by  regula- 
lations  prescribe. 

ART.  9.  SPECIAL  COURTS-MARTIAL. — The  commanding  officer 
of  a  district,  garrison,  fort,  camp,  or  other  place  where 
troops  are  on  duty,  and  the  commanding  officer  of  a  brigade, 
regiment,  detached  battalion,  or  other  detached  command 
may  appoint  special  courts-martial ;  but  when  any  such  com- 
manding officer  is  the  accuser  or  the  prosecutor  of  the  person 
or  persons  to  be  tried,  the  court  shall  be  appointed  by  su- 
perior authority,  and  may  in  any  case  be  appointed  by  su- 
perior authority  when  by  the  latter  deemed  desirable;  and 
no  officer  shall  be  eligible  to  sit  as  a  member  of  such  court 
when  he  is  the  accuser  or  a  witness  for  the  prosecution. 

ART.  10.  SUMMARY  COURTS-MARTIAL. — The  commanding  of- 
ficer of  a  garrison,  fort,  camp,  or  other  place  where  troops 
are  on  duty,  and  the  commanding  officer  of  a  regiment,  de- 
tached battalion,  detached  company,  or  other  detachment  may 
appoint  summary  courts-martial;  but  such  summary  courts- 


ART.   11  APPENDIX  1. 

martial  may  in  any  case  be  appointed  by  superior  authority 
when  by  the  latter  deemed  desirable :  Provided,  That  when 
but  one  officer  is  present  with  a  command  he  shall  be  the  sum- 
mary court-martial  of  that  command  and  shall  hear  and  de- 
termine cases  brought  before  him. 

ART.  11.  APPOINTMENT  OF  TRIAL  JUDGE  ADVOCATES  AND 
COUNSEL. — For  each  general  or  special  court-martial  the 
authority  appointing  the  court  shall  appoint  a  trial  judge 
advocate  and  a  defense  counsel,  and  for  each  general  court- 
martial  one  or  more  assistant  trial  judge  advocates  and  one 
or  more  assistant  defense  counsel  when  necessary:  Provided, 
however,  That  no  officer  who  has  acted  as  member,  trial  judge 
advocate,  assistant  trial  judge  advocate,  defense  counsel,  or  as- 
sistant defense  counsel  in  any  case  shall  subsequently  act  as  staff 
judge  advocate  to  the  reviewing  or  confirming  authority  upon 
the  same  case. 

c.  JURISDICTION. 

ART.  12.  GENERAL  COURTS-MARTIAL. — General  courts-mar- 
tial shall  have  power  to  try  any  person  subject  to  military 
law  for  any  crime  or  offense  made  punishable  by  these  arti- 
cles, and  any  other  person  who  by  the  law  of  war  is  subject 
to  trial  by  military  tribunals :  Provided,  That  no  officer  shall 
be  brought  to  trial  before  a  general  court-martial  appointed 
by  the  Superintendent  of  the  Military  Academy:  Provided 
further,  That  the  officer  competent  to  appoint  a  general  court- 
martial  for  the  trial  of  any  particular  case  may,  when  in  his 
judgment  the  interest  of  the  service  shall  so  require,  cause  any 
case  to  be  tried  by  a  special  court-martial  notwithstanding  the 
limitations  upon  the  jurisdiction  of  the  special  court-martial  as 
to  offenses  set  out  in  article  13;  but  the  limitations  upon  jurisdic- 
tion as  to  persons  and  upon  punishing  power  set  out  in  said  ar- 
ticle shall  be  observed. 

ART.  13.  SPECIAL  COURTS-MARTIAL. — Special  courts-martial 
shall  have  power  to  try  any  person  subject  to  military  law 
for  any  crime  or  offense  not  capital  made  punishable  by 
these  articles:  Provided,  That  the  President  may,  by  regu- 
lations, except  from  the  jurisdiction  of  special  courts-martial 
any  class  or  classes  of  persons  subject  to  military  law. 


496 


THE  ARTICLES   OF  WAR.  ART.    15 

Special  courts-martial  shall  not  have  power  to  adjudge 
confinement  in  excess  of  six  months,  nor  to  adjudge  forfei- 
ture of  more  than  two-thirds  pay  per  month  for  a  period  of  not 
exceeding  six  months. 

Art.  13,  Code  of  1916,  read  as  follows  : 

"  ART.  13.  SPECIAL  COURTS-MARTIAL.  —  Special  courts-martial  shall  have 
power  to  try  any  person  subject  to  military  law,  except  an  officer,  for  any 
crime  or  offense  not  capital  made  punishable  by  these  articles :  Provided,  That 
the  President  may,  by  regulations,  which  he  may  modify  from  time  to  time, 
except  from  the  jurisdiction  of  special  courts-martial  any  class  or  classes  of 
persons  subject  to  military  law. 

"  Special  courts-martial  shall  not  have  power  to  adjudge  dishonorable  dis- 
charge, nor  confinement  in  excess  of  six  months,  nor  to  adjudge  forfeiture  of 
more  than  six  months'  pay." 

ART.  14.  SUMMARY  COURTS-MARTIAL. — Summary  courts- 
martial  shall  have  power  to  try  any  person  subject  to  mili- 
tary law,  except  an  officer,  a  member  of  the  Army  Nurse  Corps, 
a  warrant  officer,  an  Army  field  clerk,  a  field  clerk  Quartermaster 
Corps,  a  cadet,  or  a  soldier  holding  the  privileges  of  a  certifi- 
cate of  eligibility  to  promotion,  for  any  crime  or  offense  not 
capital  made  punishable  by  these  articles:  Provided,  That 
noncommissioner  officers  shall  not,  if  they  object  thereto,  be 
brought  to  trial  before  a  summary  court-martial  without 
the  authority  of  the  officer  competent  to  bring  them  to  trial 
before  a  general  court-martial :  Provided  further,  That  the 
President  may,  by  regulations,  except  from  the  jurisdiction 
of  summary  courts-martial  any  class  or  classes  of  persons 
subject  to  military  law. 

Summary  courts-martial  shall  not  have  power  to  adjudge 
confinement  in  excess  of  one  month,  restriction  to  limits  for 
more  than  three  months,  or  forfeiture  or  detention  of  more  than 
two-thirds  of  one  month's  pay. 

The  words  "  which  he  may  modify  from  time  to  time,"  which  followed  the 
word  "  regulations,"  in  the  second  proviso  of  the  first  paragraph,  have  been 
omitted.  The  second  paragraph  of  art.  14,  Code  of  1916,  read  as  follows : 

"  Summary  courts-martial  shall  not  have  power  to  adjudge  confinement  In 
excess  of  three  months,  nor  to  adjudge  the  forfeiture  of  more  than  three 
months'  pay  :  Provided,  That  when  the  summary  court  officer  is  also  the  com- 
manding officer  no  sentence  of  such  summary  court-martial  adjudging  confine- 
ment at  hard  labor  or  forfeiture  of  pay,  or  both,  for  a  period  in  excess  of  one 
month  shall  be  carried  into  execution  until  the  same  shall  have  been  approved 
by  superior  authority." 

ART.  15.  JURISDICTION  NOT  EXCLUSIVE.— The  provisions 
of  these  articles  conferring  jurisdiction  upon  courts-martial 
shall  not  be  construed  as  depriving  military  commissions, 


497 


ART.     1G  APPENDIX  1. 

provost  courts,  or  other  military  tribunals  of  concurrent 
jurisdiction  in  respect  of  offenders  or  offenses  that  by  statute 
or  by  the  law  of  war  be  triable  by  such-  military  commis- 
sions, provost  courts,  or  other  military  tribunals. 

The  word  "  lawfully  "  appeared  in  the  former  article,  preceding  the  word 
"  triable." 

ART.  16.  OFFICERS  ;  HOW  TRIABLE. — Officers  shall  be  triable 
only  by  general  and  special  courts-martial,  and  in  no  case 
shall  an  officer,  when  it  can  be  avoided,  be  tried  by  officers 
inferior  to  him  in  rank. 

D.  PKOCEDUEE.. 

ART.  17.  THAI  JUDGE  ADVOCATE  TO  PROSECUTE;  COUNSEL 
TO  DEFEND. — The  trial  judge  advocate  of  a  general  or  spe- 
cial court-martial  shall  prosecute  in  the  name  of  the  United 
States,  and  shall,  under  the  direction  of  the  court,  prepare 
the  record  of  its  proceedings.  The  accused  shall  have  the 
right  to  be  represented  in  his  defense  before  the  court  by  coun- 
sel of  his  own  selection,  civil  counsel  if  he  so  provides,  or  mili- 
tary if  such  counsel  be  reasonably  available,  otherwise  by  the 
defense  counsel  duly  appointed  for  the  court  pursuant  to  article 
11.  Should  the  accused  have  counsel  of  his  own  selection,  the 
defense  counsel  and  assistant  defense  counsel,  if  any,  of  the  court, 
shall,  if  the  accused  so  desires,  act  as  his  associate  counsel. 

Article  17,  Code  of  1916,  read  as  follows : 

"  ART.  17.  JUDGE  ADVOCATE  TO  PROSECUTE. — The  judge  advocate  of  a  gen- 
eral or  special  court-martial  shall  prosecute  in  the  name  of  the  United  States, 
and  shall,  under  the  direction  of  the  court,  prepare  the  record  of  its  proceed- 
ings. The  accused  shall  have  the  right  to  be  represented  before  the  court  by 
counsel  of  his  own  selection  for  his  defense,  if  such  counsel  be  reasonably 
available,  but  should  he,  for  any  reason,  be  unrepresented  by  counsel,  the 
judge  advocate  shall  from  time  to  time  throughout  the  proceedings  advise  the 
accused  of  his  legal  rights." 

ART.  18.  CHALLENGES. — Members-  of  a  general  or  special 
court-martial  may  be  challenged  by  the  accused  or  the  trial 
judge  advocate  for  cause  stated  to  the  court.  The  court  shall 
determine  the  relevancy  and  validity  thereof,  and  shall  not. 
receive  a  challenge  to  more  than  one  member  at  a  time.  Chal- 
lenges by  the  trial  judge  advocate  shall  ordinarily  be  presented 
and  decided  before  those  by  the  accused  are  offered.  Each  side 


493 


THE  ARTICLES  OF  WAR.  ART.   19 

shall  be  entitled  to  one  peremptory  challenge ;  but  the  law  mem- 
ber of  the  court  shall  not  be  challenged  except  for  cause. 

The  words  "  but  only  "  appeared  in  the  former  article,  preceding  the  words 
"  for  cause  "  in  the  first  sentence. 

ART.  19.  OATHS. — The  trial  judge  achrocate  of  a  general  or 
special  court-martial  shall  administer  to  the  members  of  the 
court,  before  they  proceed  upon  any  trial,  the  following  oath 
or  affirmation :  "  You,  A.  B.,  do  swear  (or  affipm)  that  you 
will  well  and  truly  try  and  determine,  according  to  the  evi- 
dence, the  matter  now  before  you,  between  the  United  States 
of  America  and  the  person  to  be  tried,  and  that  you  will  duly 
administer  justice,  without  partiality,  favor,  or  affection, 
according  to  the  provisions  of  the  rules  and  articles  for  the 
government  of  the  armies  of  the  United  States,  and  if  any 
doubt  should  arise,  not  explained  by  said  articles,  then  ac- 
cording to  your  conscience,  the  best  of  your  understanding, 
and  the  custom  of  war  in  like  cases ;  and  you  do  further  swear 
(or  affirm)  that  you  will  not  divulge  the  findings  or  sentence 
of  the  court  until  they  shall  be  published  by  the  proper  au- 
thority or  duly  announced  by  the  court,  except  to  the  trial 
judge  advocate  and  assistant  trial  judge  advocate;  neither 
will  you  disclose  or  discover  the  vote  or  opinion  of  any  par- 
ticular member  of  the  court-martial  upon  a  challenge  or  upon 
the  findings  or  sentence,  unless  required  to  give  evidence 
thereof  as  a  witness  by  a  court  of  justice  in  due  course  of  law. 
So  help  you  God." 

When  the  oath  or  affirmation  has  been  administered  to  tha 
members  of  a  general  or  special  court-martial,  the  president 
of  the  court  shall  administer  to  the  trial  judge  advocate  and 
to  each  assistant  trial  judge  advocate,  if  airy,  an  oath  or 
affirmation  in  the  following  form :  "  You  A.  B.,  do  swear  (or 
affirm)  that  you  will  faithfully  and  impartially  perform  the 
duties  of  a  trial  judge  advocate,  and  will  not  divulge  the  find- 
ings or  sentence  of  the  court  to  any  but  the  proper  authority 
until  they  shall  be  duly  disclosed.  So  help  you  God." 

All  persons  who  give  evidence  before  a  court-martial  shall 
be  examined  on  oath  or  affirmation  in  the  following  form: 
"  You  swear  (or  affirm)  that  the  evidence  you  shall  give  in 
the  case  now  in  hearing  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth.  So  help  you  God." 

499 


ART.  20  APPENDIX  1. 

Every  reporter  of  the  proceedings  of  a  court-martial  shall, 
before  entering  upon  his  duties,  make  oath  or  affirmation  in 
the  following  form:  "  You  swear  (or  affirm)  that  you  will 
faithfully  perform  the  duties  of  reported  to  this  court.  So 
help  you  God." 

Every  interpreter  in  the  trial  of  any  case  before  a  court- 
martial  shall,  before  entering  upon  his  duties,  make  oath  or 
affirmation  in  the  following  form:  "  You  swear  (or  affirm) 
that  you  will  truly  interpret  in  the  case  now  in  hearing.  So 
help  you  God." 

In  case  of  affirmation  the  closing  sentence  of  adjuration 
will  be  omitted. 

The  words  "  by  the  same,"  concluded  the  first  sentence  of  the  second  para- 
graph of  the  former  article. 

ART.  20.  CONTINUANCES. — A  court-martial  may,  for  rea- 
sonable cause,  grant  a  continuance  to  either  party  for  such 
time  and  as  often  as  may  appear  to  be  just. 

ART.  21.  REFUSAL  OR  FAILURE  TO  PLEAD. — When  an  accused 
arraigned  before  a  court-martial  fails  or  refuses  to  plead,  or 
answers  foreign  to  the  purpose,  or  after  a  plea  of  guilty  makes 
a  statement  inconsistent  with  the  plea,  or  when  it  appears  to  the 
court  that  he  entered  a  plea  of  guilty  improvidently  or  through 
lack  of  understanding  of  its  meaning  and  effect,  the  court  shall 
proceed  to  trial  and  judgment  as  if  he  had  pleaded  not  guilty. 

Art  21,  Code  of  1916,  read  as  follows  : 

"  ART.  21.  REFUSAL  TO  PLEAD. — When  the  accused,  arraigned  before  a  court- 
martial,  from  obstinacy  and  deliberate  design  stands  mute  or  answers  foreign 
to  the  purpose,  the  court  may  proceed  to  trial  and  judgment  as  if  he  had 
pleaded  not  guilty." 

ART.  22.  PROCESS  TO  OBTAIN  WITNESSES. — Every  trial  judge 
advocate  of  a  general  or  special  court-martial  and  every  sum- 
mary court-martial  shall  have  power  to  issue  the  like  process 
to  compel  witnesses  to  appear  and  testify  which  courts  of  the 
United  States,  having  criminal  jurisdcition,  may  lawfully 
issue ;  but  such  process  shall  run  to  any  part  of  the  United 
States,  its  Territories,  and  possessions. 

ART.  23.  REFUSAL  TO  APPEAR  OR  TESTIFY. — Every  person  not 
subject  to  military  law  who,  being  duly  subprcnaed  to  appear 
as  a  witness  before  any  military  court,  commission,  court  of 
inquiry,  or  board,  or  before  any  officer,  military  or  civil, 


500 


THE  ARTICLES   OF   WAR.  ART.   24 

designated  to  take  a  deposition  to  be  read  in  evidence  before 
such  court,  commission,  court  of  inquiry,  or  board,  willfully 
neglects  or  refuses  to  appear,  or  refuses  to  qualify  as  a  wit- 
ness, or  to  testify,  or  produce  documentary  evidence  which 
such  person  may  have  been  legally  subpoenaed  to  produce, 
shall  be  deemed  guilty  of  a  misdemeanor,  for  which  such  per- 
son shall  be  punished  on  information  in  the  district  court  of 
the  United  States  or  in  a  court  of  original  criminal  jurisdic- 
tion in  any  of  the  territorial  possessions  of  the  United  States, 
jurisdiction  being  hereby  conferred  upon  such  courts  for 
such  purpose;  and  it  shall  be  the  duty  of  the  United  States 
district  attorney  or  the  officer  prosecuting  for  the  Govern- 
ment in  any  such  court  of  original  criminal  jurisdiction,  on 
the  certification  of  the  facts  to  him  by  the  military  court, 
commission,  court  of  inquiry,  or  board,  to  file  an  information 
against  and  prosecute  the  person  so  offending,  and  the  pun- 
ishment of  such  person,  on  conviction,  shall  be  a  fine  of  not 
more  than  $500  or  imprisonment  not  to  exceed  six  months,  or 
both,  at  the  discretion  of  the  court:  Provided,  That  the  fees 
of  such  witness  and  his  mileage,  at  the  rates  allowed  to  wit- 
nesses attending  the  courts  of  the  United  States,  shall  be  duly 
paid  or  tendered  said  witness,  such  amounts  to  be  paid  out 
of  the  appropriation  for  the  compensation  of  witnesses: 
Provided  further,  That  every  person  not  subject  to  military  law, 
who  before  any  court-martial,  military  tribunal,  or  military 
board,  or  in  connection  with,  or  in  relation  to  any  proceedings 
or  investigation  before  it  or  had  under  any  of  the  provisions  of 
this  act,  is  guilty  of  any  of  the  acts  made  punishable  as  offenses 
against  public  justice  by  any  provision  of  chapter  6  of  the  Act 
of  March  4,  1909,  entitled  "  An  Act  to  codify,  revise,  and  amend 
the  penal  laws  of  the  United  States  "  (volume  35,  United  States 
Statutes  at  Large,  page  1088),  or  any  amendment  thereof,  shall 
be  punished  as  therein  provided. 

This  article  became  effective  on  June  4,  1920. 

ART.  24.  COMPULSORY  SELF-INCRIMINATION  PROHIBITED. — • 
No  witness  before  a  military  court,  commission,  court  of  in- 
quiry, or  board,  or  before  any  officer  conducting  an  investiga- 
tion, or  before  any  officer,  military  or  civil,  designated  to  take 
a  deposition  to  be  read  in  evidence  before  a  military  court, 


501 


ART.  25  APPENDIX  1* 

commission,  court  of  inquiry,  or  board,  or  before  an  officer 
conducting  an  investigation,  shall  be  compelled  to  incriminate 
himself  or  to  answer  any  question  the  answer  to  which  nuiy 
tend  to  incriminate  him,  or  to  answer  any  question  not  ma- 
terial to  the  issue  when  such  answer  might  tend  to  degrade 
him. 

Art.  24,  Code  of  1916,  read  as  follows  : 

"AnT.  24.  COMPULSORY  SELF-INCBIMINATION  PROHIBITED. — No  witness  be- 
fore a  military  court,  commission,  court  of  Inquiry,  or  board,  or  before  any 
officer,  military  or  civil,  designated  to  take  a  deposition  to  be  read  in  evidence 
before  a  military  court,  commission,  court  of  inquiry,  or  board,  shall  be  com- 
pelled to  incriminate  himself  or  to  answer  any  questions  which  may  tend  to 
incriminate  or  degrade  him." 

ART.  25.  DEPOSITIONS — WHEN  ADMISSIBLE. — A  duly  au- 
thenticated deposition  taken  upon  reasonable  notice  to  the 
opposite  party  may  be  read  in  evidence  before  any  military 
court  or  commission  in  any  case  not  capital,  or  in  any  pro- 
ceeding before  a  court  of  inquiry  or  a  military  board,  if 
such  deposition  be  taken  when  the  witness  resides,  is  found, 
or  is  about  to  go  beyond  the  State,  Territory,  or  District  in 
which  the  court,  commission,  or  board  is  ordered  to  sit,  or 
beyond  the  distance  of  one  hundred  miles  from  the  place  of 
trial  or  hearing,  or  when  it  appears  to  the  satisfaction  of  the 
court,  commission,  board,  or  appointing  authority  that  the 
witness,  by  reason  of  age,  sickness,  bodily  infirmity,  im- 
prisonment, or  other  reasonable  cause,  is  unable  to  appenr 
and  testify  in  person  at  the  place  of  trial  or  hearing :  Pro- 
vided, That  testimony  by  deposition  may  be  adduced  for  the 
defense  in  capital  cases. 

ART.  26.  DEPOSITIONS — BEFORE  WHOM  TAKEN. — Depositions 
to  be  read  in  evidence  before  military  courts,  commissions, 
courts  of  inqury.  or  military  boards,  or  for  other  use  in  mili- 
tary administration,  may  be  taken  before  and  authenticated 
by  any  officer,  military  or  civil,  authorized  by  the  laws  of  the 
Tinted  States  or  by  the  laws  of  the  place  where  the  deposition 
is  taken  to  administer  oaths. 

ART.  27.  COURTS  OF  INQUIRY — RECORDS  OF,  WHEN  ADMIS- 
SIBLE.— The  record  of  the  proceedings  of  a  court  of  in- 
quiry may,  with  the  consent  of  the  accused,  be  read  in  evi- 
dence before  any  court-martial  or  military  commission  in 
any  case  not  capital  nor  extending  to  the  dismissal  of  an 


502 


THE  ARTICLES   OF  WAR.  ART.   31 

officer,  and  may  also  be  read  in  evidence  in  any  proceeding 
before  a  court  of  inquiry  or  a  military  board:  Provided, 
That  such  evidence  may  be  adduced  by  the  defense  in  capital 
cases  or  cases  extending  to  the  dismissal  of  an  officer. 

ART.  28.  CERTAIN  ACTS  TO  CONSTITUTE  DESERTION.— 
Any  officer  who,  having  tendered  his  resignation  and  prior 
to  due  notice  of  the  acceptance  of  the  same,  quits  his  post  or 
proper  duties  without  leave  and  with  intent  to  absent  him- 
self permanently  therefrom  shall  be  deemed  a  deserter. 

Any  soldier  who,  without  having  first  received  a  regular 
discharge,  again  enlists  in  the  Army,  or  in  the  militia  when 
in  the  service  of  the  United  States,  or  in  the  Navy  or  Marine 
Corps  of  the  United  States,  or  in  any  foreign  army,  shall  be 
deemed  to  have  deserted  the  service  of  the  United  States ;  and 
where  the  enlistment  is  in  one  of  the  forces  of  the  United 
States  mentioned  above,  to  have  fraudulently  enlisted  therein. 

Any  person  subject  to  military  law  who  quits  his  organiza- 
tion or  place  of  duty  with  the  intent  to  avoid  hazardous  duty  or 
to  shirk  important  service  shall  be  deemed  a  deserter. 

The  first  paragraph  is  the  same  as  art.  28,  Code  of  1916,  except  that  the 
former  title  of  that  article  was  "  Resignation  without  acceptance  does  not 
release  officer."  The  second  paragraph  is  the  same  as  art.  29,  Code  of  1916. 
The  third  paragraph  is  new. 

ART.  29.  COURT  TO  ANNOUNCE  ACTION.— Whenever*  the 
court  has  acquitted  the  accused  upon  all  specifications  and 
charges,  the  court  sJiall  at  once  announce  such  result  in  open 
court.  Under  such  regulations  as  the  President  may  prescribe,  the 
findings  and  sentence  in  other  cases  may  be  similarly  announced. 

ART.  30.  CLOSED  SESSIONS. — Whenever  a  general  or  special 
court-martial  shall  sit  in  closed  session,  the  trial  judge  advo- 
cate and  the  assistant  trial  judge  advocate,  if  any,  shall  with- 
draw ;  and  when  their  assistance  in  referring  to  the  recorded 
evidence  is  required,  it  shall  be  obtained  in  open  court,  and  in 
the  presence  of  the  accused  and  of  his  counsel,  if  there  be  any. 

The  words  "  their  legal  advice  or  "  appeared  in  the  former  article,  follow- 
ing the  word  "when." 

ART.  31.  METHOD  OF  VOTING. — Voting  by  members  of  a  gen- 
eral or  special  court-martial  upon  questions  of  challenge,  on  the 
findings,  and  on  the  sentence  shall  be  by  secret  written  ballot. 
The  junior  member  of  the  court  shall  in  each,  case  count  the  votes, 


603 


ART.  31  APPENDIX  1. 

which  count  shall  be  checked  by  the  president,  who  will  forth- 
with announce  the  result  of  the  ballot  to  the  members  of  the 
court.  The  law  member  of  the  court,  if  any,  or  if  there  be  no 
law  member  of  the  court,  then  the  president,  may  rule  in  open 
court  upon  interlocutory  questions,  other  than  challenges,  aris- 
ing during  the  proceedings :  Provided,  That  unless  such  ruling 
be  made  by  the  law  member  of  the  court  if  any  member  object 
thereto  the  court  shall  be  cleared  and  closed  and  the  question 
decided  by  a  majority  vote,  viva  voce,  beginning  with  the  junior 
in  rank:  And  provided  further,  That  if  any  such  ruling  be 
made  by  the  law  member  of  the  court  upon  any  interlocutory 
question  other  than  an  objection  to  the  admissibility  of  evidence 
offered  during  the  trial,  and  any  member  object  to  the  ruling, 
the  court  shall  likewise  be  cleared  and  closed  and  the  question 
decided  by  a  majority  vote,  viva  voce,  beginning  with  the  junior 
in  rank :  Provided  further,  however,  That  the  phrase,  "  objec- 
tion to  the  admissibility  of  evidence  offered  during  the  trial," 
as  used  in  the  next  preceding  proviso  hereof,  shall  not  be  con- 
strued to  include  questions  as  to  the  order  of  the  introduction 
of  witnesses  or  other  evidence,  nor  of  the  recall  of  witnesses  for 
further  examination,  nor  as  to  whether  expert  witnesses  shall  be 
admitted  or  called  upon  any  question,  nor  as  to  whether  the 
court  shall  view  the  premises  where  an  offense  is  alleged  to  have 
been  committed,  nor  as  to  the  competency  of  witnesses,  as,  for 
instance,  of  children,  witnesses  alleged  to  be  mentally  incom- 
petent, and  the  like,  nor  as  to  the  insanity  of  accused,  or 
whether  the  existence  of  mental  disease  or  mental  derangement 
on  the  part  of  the  accused  has  become  an  issue  in  the  trial,  or 
accused  required  to  submit  to  physical  examination,  nor  whether 
any  argument  or  statement  of  counsel  for  the  accused  or  of  the 
trial  judge  advocate  is  improper,  nor  any  ruling  in  a  case  involv- 
ing military  strategy  or  tactics  or  correct  military  action;  but, 
upon  all  these  questions  arising  on  the  trial,  if  any  member  ob- 
ject to  any  ruling  of  the  law  member,  the  court  shall  be  cleared 
and  closed  and  the  question  decided  by  majority  vote  of  the 
members  in  the  manner  aforesaid. 

Art.  31,  Code  of  1916,  read  as  follows : 

"  ART.  31.  ORDER  OF  VOTING. — Members  of  a  general  or  special  court-martial, 
in  giving  their  votes,  shall  begin  with  the  junior  in  rank." 


504 


THE  ARTICLES   OF  WAR.  ART.   35 

ART.  32.  CONTEMPTS. — A  military  tribunal  may  punish  as 
for  contempt  any  person  who  uses  any  menacing  words,  signs, 
or  gestures  in  its  presence,  or  who  disturbs  its  proceedings 
by  any  riot  or  disorder :  Provided,  That  such  punishment  shall 
in  no  case  exceed  one  month's  confinement,  or  a  fine  of  $100,  or 
both, 

Art.  32,  Code  of  1916,  read  as  follows  : 

"ART.  32.  CONTEMPTS. — A  court-martial  may  punish  at  discretion,  subject 
to  the  limitations  contained  in  article  fourteen,  any  person  who  uses  any 
menacing  words,  signs,  or  gestures  in  its  presence,  or  who  disturbs  its  pro- 
ceedings by  any  riot  or  disorder." 

ART.  33.  RECORDS — GENERAL  COURTS-MARTIAL. — Each  gen- 
eral court-martial  shall  keep  a  separate  record  of  its  pro- 
ceedings in  the  trial  of  each  case  brought  before  it,  and  such 
record  shall  be  authenticated  by  the  signature  of  the  presi- 
dent and  the  trial  judge  advocate;  but  in  case  the  record  can 
not  be  authenticated  by  the  president  and  trial  judge  advocate, 
by  reason  of  the  death,  disability,  or  absence  of  either  or  both 
of  them,  it  shall  be  signed  by  a  member  in  lieu  of  the  president 
and  by  an  assistant  trial  judge  advocate,  if  there  be  one,  in 
lieu  of  the  trial  judge  advocate;  otherwise  by  another  member 
of  the  court. 

Art.  33,  Code  of  1916,  following  the  semicolon,  read  as  follows: 
"  but  in  case  the  record  can  not  be  authenticated  by  the  judge  advocate,  by 
reason  of  his  death,  disability,  or  absence,  it  shall  be  signed  by  the  president 
and  an  assistant  judge  advocate,  if  any ;  and  if  there  be  no  assistant  Judge 
advocate,  or  in  case  of  his  death,  disability,  or  absence,  then  by  the  president 
and  one  other  member  of  the  court." 

ART.  34.  RECORDS — SPECIAL  AND  SUMMARY  COURTS-MAR- 
TIAL.— Each  special  court-martial  and  each  summary  court- 
martial  shall  keep  a  record  of  its  proceedings,  separate  for 
each  case,  which  record  shall  contain  such  matter  and  be 
authenticated  in  such  manner  as  may  be  required  by  regu- 
lations which  the  President  may  from  time  to  time  prescribe. 

ART.  35.  DISPOSITION  OF  RECORDS — GENERAL  COURTS-MAR- 
TIAL.— The  trial  judge  advocate  of  each  general  court-mar- 
tial shall,  with  such  expedition  as  circumstances  may  permit, 
forward  to  the  appointing  authority  or  to  his  successor  in 
command  the  original  record  of  the  proceedings  of  such 
court  in  the  trial  of  each  case.  All  records  of  such  proceed- 


605 


ART.  36  APPENDIX  1. 

ings  shall,  after  having  been  acted  upon,  be  transmitted  to 
the  Judge  Advocate  General  of  the  Army. 

The  -word  "  finally "  appeared  in  the  former  article,  preceding  tiie  word 
"  acted." 

ART.  36.  DISPOSITION  or  RECORDS — SPECIAL  AXD  SUMMARY 
COURTS-MARTIAL. — After  having  been  acted  upon  by  the  officer 
appointing  the  court,  or  by  the  officer  commanding  for  the 
time  being,  the  record  of  each  trial  by  special  court-martial 
and  a  report  of  each  trial  by  summary  court-martial  shall 
be  transmitted  to  such  general  headquarters  as  the  President 
may  designate  in  regulations,  there  to  be  filed  in  the  office 
of  the  judge  advocate.  When  no  longer  of  use,  records  of 
summary  courts-martial  may  be  destroyed. 

The  -words  "  special  and  "  appeared  in  the  former  article,  preceding  the 
word  "  summary  "  in  the  last  sentence. 

ART.  37.  IRREGULARITIES — EFFECT  OF. — The  proceedings  of 
a  court-martial  shall  not  be  held  invalid,  nor  the  findings  or 
sentence  disapproved,  in  any  case  on  the  ground  of  improper 
admission  or  rejection  of  evidence  or  for  any  error  as  to  any 
matter  of  pleading  or  procedure  unless  in  the  opinion  of  the 
reviewing  or  confirming  authority,  after  an  examination  of 
the  entire  proceedings,  it  shall  appear  that  the  error  coai- 
plained  of  has  injuriously  affected  the  substantial  rights  of 
an  accused:  Provided,  That  the  act  or  omission  upon  which 
the  accused  has  been  tried  constitutes  an  offense  denounced 
and  made  punishable  by  one  or  more  of  these  articles :  Pro- 
vided further,  That  the  omission  of  the  words  "  hard  labor  " 
in  any  sentence  of  a  court-martial  adjudging  imprisonment 
or  confinement  shall  not  be  construed  as  depriving  the  au- 
thorities executing  such  sentence  of  imprisonment  or  confine- 
ment of  the  power  to  require  hard  labor  as  a  part  of  the 
punishment  in  any  case  where  it  is  authorized  by  the  Execu- 
tive order  prescribing  maximum  punishments. 

ART.  38.  PRESIDENT  MAY  PRESCRIBE  RULES. — The  President 
may,  by  regulations,  which  he  may  modify  from  time  to 
time,  prescribe  the  proceedure,  including  modes  of  proof,  in 
cases  before  courts-martial,  courts  of  inquiry,  military  com- 
missions, and  other  military  tribunals,  which  regulations 
shall,  in  so  far  as  he  shall  deem  practicable,  apply  the  rules  of 


506 


THE   ARTICLES   OF   WAR.  ART.   4Q 

evidence  generally  recognized  in  the  trial  of  criminal  cases  in 
the  district  courts  of  the  United  States:  Provided,  That  noth- 
ing contrary  to  or  inconsistent  with  these  articles  shall  be 
so  prescribed :  Provided  further,  That  all  rules  made  in  pur- 
suance of  this  article  shall  be  laid  before  the  Congress 
annually. 

E.   LIMITATIONS  UPON  PROSECUTIONS. 

ART.  39.  As  TO  TIME. — Except  for  desertion  committed  in 
time  of  war,  or  for  mutiny  or  murder,  no  person  subject  to 
military  law  shall  be  liable  to  be  tried  or  punished  by  a 
court-martial  for  any  crime  or  offense  committed  more  than 
two  years  before  the  arraignment  of  such  person :  Provided, 
That  for  desertion  in  time  of  peace  or  for  any  crime  or  offense 
punishable  under  articles  ninety-three  and  ninety-four  of 
this  code  the  period  of  limitations  upon  trial  and  punishment 
by  court-martial  shall  be  three  years :  Provided  further,  That 
the  period  of  any  absence  of  the  accused  from  the  jurisdiction 
of  the  United  States,  and  also  any  period  during  which  by 
reason  of  some  manifest  impediment  the  accused  shall  not 
have  been  amenable  to  military  justice,  shall  be  excluded  in 
computing  the  aforesaid  periods  of  limitation :  And  provided 
further,  That  this  article  shall  not  have  the  effect  to  authorize 
the  trial  or  punishment  for  any  crime  or  offense  barred  by 
the  provisions  of  existing  law. 

ART.  40.  As  TO  NUMBER. — No  person  shall,  without  his  con- 
sent, be  tried  a  second  time  for  the  same  offense ;  but  no  pro- 
ceeding in  which  an  accused  has  been  found  guilty  by  a  court- 
martial  upon  any  charge  or  specification  shall  be  held  to  be  a 
trial  in  the  sense  of  this  article  until  the  reviewing  and,  if  there 
be  one,  the  confirming  authority  shall  have  taken  final  action 
upon  the  case. 

No  authority  shall  return  a  record  of  trial  to  any  court-mar- 
tial for  reconsideration  of — 

(a)  An  acquittal;  or 

(b)  A  finding  of  not  guilty  of  any  specification;  or 

(c)  A  finding  of  not  guilty  of  any  charge,  unless  the  record 
shows  a  finding  of  guilty  under  a  specification  laid  under  that 
charge,  which  sufficiently  alleges  a  violation  of  some  article  of 
war;  or 

507 


ART.  41  APPENDIX  1. 

(d)  The  sentence  originally  imposed,  with  a  view  to  increasing 
its  severity,  unless  such  sentence  is  less  than  the  mandatory  sen- 
tence fixed  by  law  for  the  offense  or  offenses  upon  which  a  convic- 
tion has  been  had. 

And  no  court-martial,  in  any  proceedings  on  revision,  shall  re- 
consider its  finding  or  sentence  in  any  particular  in  which  a  re- 
turn of  the  record  of  trial  for  such  reconsideration  is  hereinbefore 
prohibited. 

F.    PUNISHMENTS. 

ART.  41.  CRUEL  AND  UNUSUAL  PUNISHMENTS  PROHIB- 
ITED.— Cruel  and  unusual  punishments  of  every  kind,  including 
flogging,  branding,  marking,  or  tattooing  on  the  body,  are 
prohibited. 

Art.  41,  Code  of  1916,  read  as  follows : 

"  ART.  41.  CERTAIN  KINDS  PROHIBITED. — Punishment  by  flogging,  or  by 
branding,  marking,  or  tattooing  on  the  body  is  prohibited." 

ART.  42.  PLACES  OF  CONFINEMENT — WHEN  LAWFUL. — Ex- 
cept for  desertion  in  time  of  war,  repeated  desertion  in  time  of 
peace,  and  mutiny,  no  person  shall  under  the  sentence  of  a 
court-martial  be  punished  by  confinement  in  a  penitentiary 
unless  an  act  or  omission  of  which  he  is  convicted  is  recog- 
nized as  an  offense  of  a  civil  nature  and  so  punishable  by  pen- 
itentiary confinement  for  more  than  one  year  by  some  statute  of 
the  United  States,  of  general  application  within  the  continental 
United  States,  excepting  section  289,  Penal  Code  of  the  United 
States,  1910,  or  by  the  law  of  the  District  of  Columbia,  or  by  way 
of  commutation  of  a  death  sentence,  and  unless,  also  the  period 
of  confinement  authorized  and  adjudged  by  such  court-martial  is 
more  than  one  year:  Provided,  That  when  a  sentence  of  con- 
finement is  adjudged  by  a  court-martial  upon  conviction  of 
two  or  more  acts  or  omissions  any  one  of  which  is  punishable 
under  these  articles  by  confinement  in  a  penitentiary,  the 
entire  sentence  of  confinement  may  be  executed  in  a  peni- 
tentiary: Provided  further,  That  penitentiary  confinement 
hereby  authorized  may  be  served  in  any  penitentiary  directly 
or  indirectly  under  the  jurisdiction  of  the  United  States: 
Provided  further,  That  persons  sentenced  to  dishonorable 
discharge  and  to  confinement  not  in  a  penitentiary  shall  be 
confined  in  the  United  States  Disciplinary  Barracks  or  else- 

508 


THE  ARTICLES   OF  WAR.  ART.  45 

where  as  the  Secretary  of  War  or  the  reviewing  authority 
may  direct,  but  not  in  a  penitentiary. 

The  language  between  the  words  "  offense  of  a  civil  nature  "  and  the  first 
proviso  in  Art.  42,  Code  of  1916,  read  as  follows  :  "  by  some  statute  of  the 
United  States,  or  at  the  common  law  as  the  same  exists  in  the  District  of 
Columbia,  or  by  way  of  commutation  of  a  death  sentence,  and  unless,  also, 
the  period  of  confinement  authorized  and  adjudged  by  such  court-martial  is 
one  year  or  more  :  " 

ART.  43.  DEATH  SENTENCE — WHEN  LAWFUL. — No  person 
shall,  by  general  court-martial,  be  convicted  of  an  offense  for 
which  the  death  penalty  is  made  mandatory  by  law,  nor  sen- 
tenced to  suffer  death,  except  by  the  -concurrence  of  all  the 
members  of  said  court-martial  present  at  the  time  the  vote  is 
taken,  and  for  an  offense  in  these  articles  expressly  made 
punishable  by  death ;  nor  sentence  to  life  imprisonment,  nor  to 
confinement  for  more  than  ten  years,  except  by  the  concurrence 
of  three-fourths  of  all  of  the  members  present  at  the  time  the 
vote  is  taken.  All  other  convictions  and  sentences,  whether 
by  general  or  special  court-martial,  may  be  determined  by  a 
two-thirds  vote  of  those  members  present  at  the  time  the 
vote  is  taken.  All  other  questions  shall  be  determined  by  a  ma- 
jority vote. 

Art.  43,  Code  of  1916,  read  as  follows : 

"  ART.  43.  DEATH  SENTENCE — WHEN  LAWFUL. — No  person  shall,  by  general 
court-martial,  be  convicted  of  an  offense  for  which  the  death  penalty  is  made 
mandatory  by  law,  nor  sentenced  to  suffer  death,  except  by  the  concurrence 
of  two-thirds  of  the  members  of  said  court-martial  and  for  an  offense  in  these 
articles  expressly  made  punishable  by  death.  All  other  convictions  and  sen- 
tences, whether  by  general  or  special  court-martial,  may  be  determined  by  a 
majority  of  the  members  present." 

ART.  44.  COWARDICE;  FRAUD — ACCESSORY  PENALTY. — When 
an  officer  is  dismissed  from  the  service  for  cowardice  or  fraud, 
the  crime,  punishment,  name,  and  place  of  abode  of  the  de- 
linquent shall  be  published  in  the  newspapers  in  and  about  the 
camp  and  in  the  State  from  which  the  offender  came  or  where 
he  usually  resides;  and  after  such  publication  it  shall  be 
scandalous  for  an  officer  to  associate  with  him. 

ART.  45.  MAXIMUM  LIMITS. — Whenever  the  punishment  for 
a  crime  or  offense  made  punishable  by  these  articles  is  left 
to  the  discretion  of  the  court-martial  the  punishment  shall 
not  exceed  such  limit  or  limits  as  the  President  may  from 
time  to  time  prescribe:  Provided,  That  in  time  of  peace  the 
period  of  confinement,  in  a  penitentiary  shall  in  no  case  exceed 

21358°— 20 33 

509 


ART.  46  APPENDIX  1. 

the  maximum  period  prescribed  by  the  law  which,  under  article 
42  of  these  articles,  permits  confinement  in  a  penitentiary,  unless 
in  addition  to  the  offense  so  punishable  under  such  law  the  ac- 
cused shall  have  been  convicted  at  the  same  time  of  one  or  more 
other  offenses. 

This  article  became  effective  on  June  4,  1920.  The  words  "  In  time  of 
peace  "  appeared  in  the  former  article,  preceding  the  word  "  exceed." 

O.   ACTION  BY  APPOINTING  OR  SUPERIOR  AUTHORITY. 

ART.  46.  ACTION  BY  CONVENING  AUTHORITY.— Under 
such  regulations  as  may  be  prescribed  by  the  President  every 
record  of  trial  by  general  court-martial  or  military  commission 
received  by  a  reviewing  or  confirming  authority  shall  be  re- 
ferred by  him,  before  he  acts  thereon,  to  his  staff  judge  advocate 
or  to  the  Judge  Advocate  General.  No  sentence  of  a  court- 
martial  shall  be  carried  into  execution  until  the  same  shall 
have  been  approved  by  the  officer  appointing  the  court  or  by 
the  officer  commanding  for  the  time  being. 

The  former  article  was  entitled,  "  Approval  and  execution  of  sentence." 

ART.  47.  POWERS  INCIDENT  TO  POWER  TO  APPROVE. — The 
power  to  approve  the  sentence  of  a  court-martial  shall  be 
held  to  include: 

(a)  The  power  to  approve  or  disapprove  a  rinding  and  to 
approve  only  so  much  of  a  rinding  of  guilty  of  a  particular 
offense  as  involves  a  finding  of  guilty  of  a  lesser  included 
offense  when,  in  the  opinion  of  the  authority  having  power  to 
approve,  the  evidence  of  record  requires  a  finding  of  only 
the  lesser  degree  of  guilt ;  and 

(b)  The  power  to  approve  or  disapprove  the  whole  or  any 
part  of  the  sentence. 

(c)  The  power  to  remand  a  case  for  rehearing,  under  the  pro- 
visions of  article  5Ql/z. 

ART.  48.  CONFIRMATION — WHEN  REQUIRED. — In  addition  to 
the  approval  required  by  article  forty-six,  confirmation  by 
the  President  is  required  in  the  following  cases  before  the 
sentence  of  a  court-martial  is  carried  into  execution,  namely : 

(a)  Any  sentence  respecting  a  general  officer; 

(b)  Any  sentence  extending  to  the  dismissal  of  an  officer, 
except  that  in  time  of  war  a  sentence  extending  to  the  dis- 


510 


THE  ARTICLES   OF  WAR.  ART.    50 

missal  of  an  officer  below  the  grade  of  brigadier  general  may 
be  carried  into  execution  upon  confirmation  by  the  command- 
ing general  of  the  Army  in  the  field  or  by  the  commanding 
general  of  the  territorial  department  or  division : 

(c)  Any  sentence  extending  to  the  suspension  or  dismissal 
of  a  cadet;  and 

(d)  Any  sentence  of  death,  except  in  the  cases  of  persons 
convicted  in  time  of  war  of  murder,  rape,  mutiny,  desertion, 
or  as  spies;  and  in  such  excepted  cases  a  sentence  of  death 
may  be  carried  into  execution,  subject  to  the  provisions  of 
article  501/2,  upon  confirmation  by  the  commanding  general  of 
the  Army  in  the  field  or  by  the  commanding  general  of  the 
territorial  department  or  division. 

When  the  authority  competent  to  confirm  the  sentence  has 
already  acted  .as  the  approving  authority  no  additional  con- 
firmation by  him  is  necessary. 

ART.  49.  POWERS  INCIDENT  TO  POWER  TO  CONFIRM. — The 
power  to  confirm  the  sentence  of  a  court-martial  shall  b? 
held  to  include  : 

(a)  The  power  to  confirm  or  disapprove  a  finding,  and  to 
confirm  so  much  only  of  a  finding  of  guilty  of  a  particular 
offense  as  involves  a  finding  of  guilty  of  a  lesser  included 
offense  when,  in  the  opinion  of  the  authority  having  power 
to  confirm,  the  evidence  of  record  requires  a  finding  of  only 
the  lesser  degree  of  guilt ;  and 

(b)  The  power  to  confirm  or  disapprove  the  whole  or  any 
part  of  the  sentence. 

(c)  The  power  to  remand  a  case  for  rehearing,  under  the 
provisions  of  article  50J. 

ART.  50.  MITIGATION  or  REMISSION  OF  SENTENCES. — The 
power  to  order  the  execution  of  the  sentence  adjudged  by  a 
court-martial  shall  be  held  to  include,  inter  alia,  the  power  to 
mitigate  or  remit  the  whole  or  any  part  of  the  sentence. 

Any  unexecuted  portion  of  a  sentence  adjudged  by  a  court- 
martial  may  be  mitigated  or  remitted  by  the  military  author- 
ity competent  to  appoint,  for  the  command,  exclusive  of  pen- 
itentiaries and  the  United  States  Disciplinary  Barracks, 
in  which  the  person  under  sentence  is  held,  a  court  of  the 
kind  that  imposed  the  sentence,  and  the  same  power  may  be 


511 


ART.  50 \  APPENDIX  1. 

exercised  by  superior  military  authority;  but  no  sentence 
approved  or  confirmed  by  the  President  shall  be  remitted  or 
mitigated  by  any  other  authority,  and  no  approved 
sentence  of  loss  of  -files  by  an  officer  shall  be  remitted  or  miti- 
gated by  any  authority  inferior  to  the  President,  except  as 
provided  in  the  -fifty-second  article. 

When  empowered  by  the  President  so  to  do,  the  command- 
ing general  of  the  Army  in  the  field  or  the  commanding  gen- 
eral of  the  territorial  department  or  division,  may  approve 
or  confirm  and  commute  (but  not  approve  or  confirm  without 
commuting),  mitigate,  or  remit  and  then  order  executed  as 
commuted,  mitigated,  or  remitted  any  sentence  which  under 
these  articles  requires  the  confirmation  of  the  President  be- 
fore the  same  may  be  executed. 

The  power  of  remission  on  mitigation  shall  extend  to  all 
uncollected  forfeitures  adjudged  by  sentence  of  court- 
martial. 

The  last  sentence  of  the  former  article  read :  "  The  po^er  of  remission  and 
mitigation  shall  extend  to  all  uncollected  forfeitures  adjudged  by  sentence  of 
a  court-martial." 

ART.  50J.  REVIEW;  REHEARING.— The  Judge  Advocate 
General  shall  constitute,  in  his  office,  a  board  of  review  consist- 
ing of  not  less  than  three  officers  of  the  Judge  Advocate  Gen- 
eral's Department. 

Before  any  record  of  trial  in  which  there  has  been  adjudged 
a  sentence  requiring  approval  or  confirmation  by  the  President 
under  the  provisions  of  article  46,  article  48,  or  article  51  is 
submitted  to  the  President,  such  record  shall  be  examined  by  the 
board  of  review.  The  board  shall  submit  its  opinion,  in  writing, 
to  the  Judge  Advocate  General,  who  shall,  except  as  herein  other- 
wise provided,  transmit  the  record  and  the  board's  opinion,  with 
his  recommendations,  directly  to  the  Secretary  of  War  for  the 
action  of  the  President. 

Except  as  herein  provided,  no  authority  shall  order  the  execu- 
tion of  any  other  sentence  of  a  general  court-martial  involving 
the  penalty  of  death,  dismissal  not  suspended,  dishonorable  dis- 
charge not  suspended,  or  confinement  in  a  penitentiary,  unless 
and  until  the  board  of  review  shall,  with  the  approval  of  the 
Judge  Advocate  General,  have  held  the  record  of  trial  upon 
which  such  sentence  is  based  legally  sufficient  to  support  the 


512 


THE  ARTICLES  OF  WAR.  ART. 

sentence ;  except  that  the  proper  reviewing  or  confirming  author- 
ity may  upon  his  approval  of  a  sentence  involving  dishonorable 
discharge  or  confinement  in  a  penitentiary  order  its  execution  if  it 
is  based  solely  upon  findings  of  guilty  of  a  charge  or  charges 
and  a  specification  or  specifications  to  which  the  accused  has 
pleaded  guilty.  When  the  board  of  review,  with  the  approval 
of  the  Judge  Advocate  General,  holds  the  record  in  a  case  in 
which  the  order  of  execution  has  been  withheld  under  the  pro- 
visions of  this  paragraph  legally  sufficient  to  support  the  findings 
and  sentence,  the  Judge  Advocate  General  shall  so  advise  the 
reviewing  or  confirming  authority  from  whom  the  record  was 
received,  who  may  thereupon  order  the  execution  of  the  sen- 
tence. When  in  a  case  in  which  the  order  of  execution  has 
been  withheld  under  the  provisions  of  this  paragraph,  the  board 
of  review  holds  the  record  of  trial  legally  insufficient  to  support 
the  findings  or  sentence,  either  in  whole  or  in  part,  or  that 
errors  of  law  have  been  committed  injuriously  affecting  the  sub- 
stantial rights  of  the  accused,  and  the  Judge  Advocate  General 
concurs  in  such  holding  of  the  board  of  review,  such  findings 
and  sentence  shall  be  vacated  in  whole  or  in  part  in  accord  with 
such  holding  and  the  recommendations  of  the  Judge  Advocate 
General  thereon,  and  the  record  shall  be  transmitted  through 
the  proper  channels  to  the  convening  authority  for  a  rehearing 
or  such  other  action  as  may  be  proper.  In  the  event  that  the 
Judge  Advocate  General  shall  not  concur  in  the  holding  of  the 
board  of  review,  the  Judge  Advocate  General  shall  forward  all 
the  papers  in  the  case,  including  the  opinion  of  the  board  of 
review  and  his  own  dissent  therefrom,  directly  to  the  Secretary 
of  War  for  the  action  of  the  President,  who  may  confirm  the 
action  of  the  reviewing  authority  or  confirming  authority  below, 
in  whole  or  in  part,  with  or  without  remission,  mitigation,  or 
commutation,  or  may  disapprove,  in  whole  or  in  part,  any  find- 
ing of  guilty,  and  may  disapprove  or  vacate  the  sentence,  in 
whole  or  in  part. 

When  the  President  or  any  reviewing  or  confirming  authority 
disapproves  or  vacates  a  sentence  the  execution  of  which  has  not 
theretofore  been  duly  ordered,  he  may  authorize  or  direct  a  re- 
hearing. Such  rehearing  shall  take  place  before  a  court  com- 
posed of  officers  not  members  of  the  court  which  first  heard  the 


513 


ART.  50 J  APPEITDIX  L. 

case.  Upon  such  rehearing  the  accused  shall  not  be  tried  for  any 
offense  of  which  he  was  found  not  guilty  by  the  first  court,  and 
no  sentence  in  excess  of  or  more  severe  than  the  original  sen- 
tence shall  be  enforced  unless  the  sentence  be  based  upon  a  find- 
ing of  guilty  of  an  offense  not  considered  upon  the  merits  in  the 
original  proceeding :  Provided,  That  such  rehearing  shall  be  had 
in  all  cases  where  a  finding  and  sentence  have  been  vacated  by 
reason  of  the  action  of  the  board  of  review  approved  by  the  Judge 
Advocate  General  holding  the  record  of  trial  legally  insufficient 
to  support  the  findings  or  sentence  or  that  errors  of  law  have 
been  committed  injuriously  affecting  the  substantial  rights  of  the 
accused,  unless,  in  accord  with  such  action,  and  the  recommen- 
dations of  the  Judge  Advocate  General  thereon,  the  findings  or 
sentence  are  approved  in  part  only,  or  the  record  is  returned  for 
revision,  or  unless  the  case  is  dismissed  by  order  of  the  reviewing 
or  confirming  authority.  After  any  such  rehearing  had  on  the 
order  of  the  President,  the  record  of  trial  shall,  after  examination 
by  the  board  of  review,  be  transmitted  by  the  Judge  Advocate 
General,  with  the  board's  opinion  and  his  recommendations, 
directly  to  the  Secretary  of  War  for  the  action  of  the  President. 
Every  record  of  trial  by  general  court-martial,  examination  of 
which  by  the  board  of  review  is  not  hereinbefore  in  this  article 
provided  for,  shall  nevertheless  be  examined  in  the  Judge  Advo- 
cate General's  Office;  and  if  found  legally  insufficient  to  support 
the  findings  and  sentence,  in  whole  or  in  part,  shall  be  examined 
by  the  board  of  review,  and  the  board,  if  it  also  finds  that  such 
record  is  legally  insufficient  to  support  the  findings  and  sentence, 
in  whole  or  in  part,  shall,  in  writing,  submit  its  opinion  to  the 
Judge  Advocate  General,  who  shall  transmit  the  record  and  the 
board's  opinion,  with  his  recommendations,  directly  to  the  Secre- 
tary of  War  for  the  action  of  the  President.  In  any  such  case 
the  President  may  approve,  disapprove,  or  vacate,  in  whole  or  in 
part,  any  findings  of  guilty,  or  confirm,  mitigate,  commute,  re- 
mit, or  vacate  any  sentence,  in  whole  or  in  part,  and  direct  the 
execution  of  the  sentence  as  confirmed  or  modified,  and  he  may 
restore  the  accused  to  all  rights  affected  by  the  findings  and  sen- 
tence, or  part  thereof,  held  to  be  invalid;  and  the  President's 
necessary  orders  to  this  end  shall  be  binding  upon  all  depart- 
ments and  officers  of  the  Government. 


514 


THE  ARTICLES  OF  WAR.  ART.   52 

Whenever  necessary,  the  Judge  Advocate  General  may  consti- 
tute two  or  more  boards  of  review  in  his  office,  with  equal  powers 
and  duties. 

Whenever  the  President  deems  such  action  necessary,  he  may 
direct  the  Judge  Advocate  General  to  establish  a  branch  of  his 
office,  under  an  Assistant  Judge  Advocate  General,  with  any  dis- 
tant command,  and  to  establish  in  such  branch  office  a  board  of 
review,  or  more  than  one.  Such  Assistant  Judge  Advocate  Gen- 
eral and  such  board  or  boards  of  review  shall  be  empowered  to 
perform  for  that  command,  under  the  general  supervision  of  the 
Judge  Advocate  General,  the  duties  which  the  Judge  Advocate 
General  and  the  board  or  boards  of  review  in  his  office  would 
otherwise  be  required  to  perform  in  respect  of  all  cases  involving 
sentences  not  requiring  approval  or  confirmation  by  the  Presi- 
dent. 

ART.  51.  SUSPENSION  OF  SENTENCES  OF  DISMISSAL  OR  DEATH. — 
The  authority  competent  to  order  the  execution  of  a  sentence 
of  dismissal  of  an  officer  or  a  sentence  of  death  may  suspend 
such  sentence  until  the  pleasure  of  the  President  be  known, 
and  in  case  of  such  suspension  a  copy  of  the  order  of  suspen- 
sion, together  with  a  copy  of  the  record  of  trial,  shall  im- 
mediately be  transmitted  to  the  President. 

ART.  52.  SUSPENSION  OF  SENTENCES. — The  authority  compe- 
tent to  order  the  execution  of  the  sentence  of  a  court-martial 
may,  at  the  time  of  the  approval  of  such  sentence,  suspend 
the  execution,  in  whole  or  in  part,  of  any  such  sentence  as 
does  not  extend  to  death,  and  may  restore  the  person  under 
sentence  to  duty  during  such  suspension;  and  the  Secretary  of 
War  or  the  commanding  officer  holding  general  court-martial 
jurisdiction  over  any  such  offender,  may  at  any  time  thereafter, 
while  the  sentence  is  being  served,  suspend  the  execution,  in 
whole  or  in  part,  of  the  balance  of  such  sentence  and  restore  the 
person  under  sentence  to  duty  during  such  suspension.  A  sen- 
tence, or  any  part  thereof,  which  has  been  so  suspended  may 
be  remitted,  in  whole  or  in  part,  except  in  cases  of  persons 
confined  in  the  United  /States  Disciplinary  Barracks  or  its 
branches,  by  the  officer  who  suspended  the  same,  by  his  suc- 
cessor in  office,  or  by  any  officer  exercising  appropriate  court- 
martial  jurisdiction  over  the  command  in  which  the  person 


515 


ART.  53  APPENDIX  1. 

under  sentence  may  be  serving  at  the  time,  and,  subject  to  the 
foregoing  exceptions,  the  same  authority  may  vacate  the 
order  of  suspension  at  any  time  and  order  the  execution  of 
the  sentence  or  the  suspended  part  thereof  in  so  far  as  the 
same  shall  not  have  been  previously  remitted,  subject  to  like 
power  of  suspension.  The  death  or  honorable  discharge  of  a 
person  under  a  suspended  sentence  shall  operate  as  a  complete 
remission  of  any  unexecuted  or  unremitted  part  of  such  sen- 
tence. 

ART.  53.  EXECUTION  OR  REMISSION— CONFINE- 
MENT IN  DISCIPLINARY  BARRACKS.— When  a  sen- 
tence of  dishonorable  discharge  has  been  suspended  until  the 
soldier's  release  from  confinement ,  the  execution  or  remission 
of  any  part  of  his  sentence  shall,  if  the  soldier  ~be  confined  in 
the  United  States  Disciplinary  Barracks,  or  any  branch 
thereof,  be  directed  by  the  Secretary  of  War. 

III.  PUNITIVE  ARTICLES. 
A.  ENLISTMENT;  MUSTER;  RETURNS. 

ART.  54. — FRAUDULENT  ENLISTMENT. — Any  person  who 
shall  procure  himself  to  be  enlisted  in  the  military  service  of 
the  United  States  by  means  of  willful  misrepresentation  or 
concealment  as  to  his  qualifications  for  enlistment,  and  shall 
receive  pay  or  allowances  under  such  enlistment,  shall  be  pun- 
ished as  a  court-martial  may  direct. 

ART.  55.  — OFFICER  MAKING  UNLAWFUL  ENLISTMENT. — Any 
officer  who  knowingly  enlists  or  musters  into  the  military 
service  any  person  whose  enlistment  or  muster  in  is  prohibited 
by  law,  regulations,  or  orders  shall  be  dismissed  from  the 
service  or  suffer  such  other  punishment  as  a  court-martial 
may  direct. 

ART.  56.  FALSE  MUSTER. — Any  officer  who  knowingly 
makes  a  false  muster  of  man  or  animal,  or  who  signs  or  directs 
or  allows  the  signing  of  any  muster  roll  knowing  the  same  to 
contain  a  false  muster  or  false  statement  as  to  the  absence  or 
pay  of  an  officer  or  soldier,  or  who  wrongfully  takes  money 
or  other  consideration  on  mustering  in  a  regiment,  company, 


616 


THE  ARTICLES   OF  WAB.  ART.   59 

or  other  organization,  or  on  signing  muster  rolls,  or  who 
knowingly  musters  as  an  officer  or  soldier  a  person  who  is  not 
such  officer  or  soldier,  shall  be  dismissed  from  the  service  and 
suffer  such  other  punishment  as  a  court-martial  may  direct. 

This  article  is  the  same  as  the  last  sentence  of  art.  56,  Code  of  1916.  The 
portion  of  the  former  article  not  retained  read  as  follows : 

"  ART.  56.  MUSTER  ROLLS — FALSE  MUSTER. — At  every  muster  of  a  regi- 
ment, troop,  battery,  or  company  the  commanding  officer  thereof  shall  give  to 
the  mustering  officer  certificates,  signed  by  himself,  stating  how  long  absent 
officers  have  been  absent  and  the  reasons  of  their  absence.  And  the  com- 
manding officer  of  every  troop,  battery,  or  company  shall  give  like  certificates, 
stating  how  long  absent  noncommissioned  officers  and  private  soldiers  have 
been  absent  and  the  reasons  of  their  absence.  Such  reasons  and  time  of 
absence  shall  be  inserted  in  the  muster  rolls  opposite  the  names  of  the  respec- 
tive absent  officers  and  soldiers,  and  the  certificates,  together  with  the  muster 
rolls,  shall  be  transmitted  by  the  mustering  officer  to  the  Department  of  War 
as  speedily  as  the  distance  of  the  place  and  muster  will  admit." 

ART.  57.  FALSE  RETURNS — OMISSION  TO  RENDER  RETURNS. — 
Every  officer  whose  duty  it  is  to  render  to  the  War  Depart- 
ment or  other  superior  authority  a  return  of  the  state  of  the 
troops  under  his  command,  or  of  the  arms,  ammunition, 
clothing,  funds,  or  other  property  thereunto  belonging,  who 
knowingly  makes  a  false  return  thereof  shall  be  dismissed 
from  the  service  and  suffer  such  other  punishment  as  a  court- 
martial  may  direct.  And  any  officer  who,  through  neglect  or 
design,  omits  to  render  such  return  shall  be  punished  as  a 
court-martial  may  direct. 

This  article  is  the  same  as  art.  57,  Code  of  1916,  except  that  the  first  sen- 
tence of  the  former  article,  reading  as  follows,  has  been  omitted: 

"ART.  57.  FALSE  RETURNS — OMISSION  TO  RENDER  RETURNS. — Every  officer 
commanding  a  regiment,  an  independent  troop,  battery,  or  company,  or  a 
garrison  shall,  in  the  beginning  of  every  month,  transmit  through  the  proper 
channels,  to  the  Department  of  War,  an  exact  return  of  the  same." 

B.  DESERTION;  ABSENCE  WITHOUT  LEAVE. 

ART.  58.  DESERTION. — Any  person  subject  to  military  law 
who  deserts  or  attempts  to  desert  the  service  of  the  United 
States  shall,  if  the  offense  be  committed  in  time  of  war,  suffer 
death  or  such  other  punishment  as  a  court-martial  may  di- 
rect, and,  if  the  offense  be  committed  at  any  other  time,  any 
punishment,  excepting  death,  that  a  court-martial  may  direct. 

ART.  59.  ADVISING  OR  AIDING  ANOTHER  TO  DESERT. — Any  per- 
son subject  to  military  law  who  advises  or  persuades  or 
knowingly  assists  another  to  desert  the  service  of  the  United 


517 


ART.  60  APPENDIX  1. 

States  shall,  if  the  offense  be  committed  in  time  of  war,  suffer 
death  or  such  other  punishment  as  a  court-martial  may  di- 
rect, and,  if  the  offense  be  committed  at  any  other  time,  any 
punishment,  excepting  death,  that  a  court-martial  may  direct. 

ART.  60.  ENTERTAINING  A  DESERTER. — Any  officer  who,  after 
having  discovered  that  a  soldier  in  his  command  is  a  deserter 
from  the  military  or  naval  service  or  from  the  Marine  Corps, 
retains  such  deserter  in  his  command  without  informing  su- 
perior authority  or  the  commander  of  the  organization  to 
which  the  deserter  belongs,  shall  be  punished  as  a  court- 
martial  may  direct. 

ART.  61.  ABSENCE  WITHOUT  LEAVE. — Any  person  subject  to 
military  law  who  fails  to  repair  at  the  fixed  time  to  the 
properly  appointed  place  of  duty,  or  goes  from  the  same 
without  proper  leave,  or  absents  himself  from  his  command, 
guard,  quarters,  station,  or  camp  without  proper  leave,  shall 
be  punished  as  a  court-martial  may  direct, 

C.  DISRESPECT ;  INSUBORDINATION  ;  MUTINY. 

ART.  62.  DISRESPECT  TOWARD  THE  PRESIDENT,  VICE  PRESI- 
DENT, CONGRESS,  SECRETARY  or  WAR,  GOVERNORS,  LEGISLA- 
TURES.— Any  officer  who  uses  contemptuous  or  disrespectful 
words  against  the  President,  Vice  President,  the  Congress  of 
the  United  States,  the  Secretary  of  War,  or  the  governor  or 
legislature  of  any  State,  Territory,  or  other  possession  of  the 
United  States  in  which  he  is  quartered  shall  be  dismissed 
from  the  service  or  suffer  such  other  punishment  as  a  court- 
martial  may  direct.  Any  other  person  subject  to  military 
law  who  so  offends  shall  be  punished  as  a  court-martial  may 
direct. 

ART.  63.  DISRESPECT  TOWARD  SUPERIOR  OFFICER. — Any  per- 
son subject  to  military  law  who  behaves  himself  with  disre- 
spect toward  his  superior  officer  shall  be  punished  as  a  court- 
martial  may  direct. 

ART.  64.  ASSAULTING  OR  WILLFULLY  DISOBEYING  SUPERIOR 
OFFICER. — Arty  person  subject  to  military  law  who,  on  any 
pretense  whatsoever,  strikes  his  superior  officer  or  draws  or 
lifts  up  any  weapon  or  offers  any  violence  against  him, 


518 


THE  ARTICLES   OF  WAR.  ART.  68 

being  in  the  execution  of  his  office,  or  willfully  disobeys  any 
lawful  command  of  his  superior  officer,  shall  suffer  death  or 
such  other  punishment  as  a  court-martial  may  direct. 

ART.  65.  INSUBORDINATE  CONDUCT  TOWARD  NONCOMMIS- 
SIONED OFFICER. — Any  soldier  who  strikes  or  assaults,  or 
who  attempts  or  threatens  to  strike  or  assault,  or  willfully 
disobeys  the  lawful  order  of  a  warrant  officer  or  a  noncom- 
missioned officer  while  in  the  execution  of  his  office,  or  uses 
threatening  or  insulting  language,  or  behaves  in  an  insub- 
ordinate or  disrespectful  manner  toward  a  warrant  officer  or 
a  noncommissioned  officer  while  in  the  execution  of  his  office, 
shall  be  punished  as  a  court-martial  may  direct. 

ART.  66.  MUTINY  OR  SEDITION. — Any  person  subject  to 
military  law  who  attempts  to  create  or  who  begins,  excites, 
causes,  or  joins  in  any  mutiny  or  sedition  in  any  company, 
party,  post,  camp,  detachment,  guard,  or  other  command 
shall  suffer  death  or  such  other  punishment  as  a  court-martial 
may  direct. 

ART.  67.  FAILURE  TO  SUPPRESS  MUTINY  OR  SEDITION. — Any 
officer  or  soldier  who,  being  present  at  any  mutiny  or  sedition, 
does  not  use  his  utmost  endeavor  to  suppress  the  same,  or 
knowing  or  having  reason  to  believe  that  a  mutiny  or  sedition 
is  to  take  place,  does  not  without  delay  give  information 
thereof  to  his  commanding  officer  shall  suffer  death  or  such 
other  punishment  as  a  court-martial  may  direct. 

ART.  68.  QUARRELS;  FRAYS;  DISORDERS. — All  officers,  mem- 
bers of  the  Army  Nurse  Corps,  warrant  officers,  Army  field  clerks, 
field  clerks,  Quartermaster  Corps,  and  noncommissioned  officers 
have  power  to  part  and  quell  all  quarrels,  frays,  and  dis- 
orders among  persons  subject  to  military  law  and  to  order 
officers  who  take  part  in  the  same  into  arrest,  and  other  per- 
sons subject  to  military  law  who  take  part  in  the  same  into 
arrest  or  confinement,  as  circumstances  may  require,  until 
their  proper  superior  officer  is  acquainted  therewith.  And 
whosoever,  being  so  ordered,  refuses  to  obey  such  officer, 
nurse,  band  leader,  warrant  officer,  field  clerk,  or  noncommis- 
sioned officer,  or  draws  a  weapon  upon  or  otherwise  threatens 
or  does  violence  to  him,  shall  be  punished  as  a  court-martial 
may  direct. 


519 


ART.  69  APPENDIX  1. 


ART.  69.  ARREST  OR  CONFINEMENT. — Any  person  subject  to 
military  law  charged  with  crime  or  with  a  serious  offense 
under  these  articles  shall  be  placed  in  confinement  or  in 
arrest  as  circumstances  may  require;  but  when  charged  with  a 
minor  offense  only  such  person  shall  not  ordinarily  be  placed  in 
confinement.  Any  person  placed  in  arrest  under  the  provi- 
sions of  this  article  shall  thereby  be  restricted  to  his  bar- 
racks, quarters,  or  tent,  unless  such  limits  shall  be  enlarged 
by  proper  authority.  Any  officer  or  cadet  who  breaks  his 
arrest  or  who  escapes  from  confinement,  whether  before  or 
after  trial  or  sentence  and  before  he  is  set  at  liberty  by 
proper  authority,  shall  be  dismissed  from  the  service  or 
suffer  such  other  punishment  as  a  court-martial  may  direct; 
and  any  other  person  subject  to  military  law  who  escapes 
from  confinement  or  who  breaks  his  arrest,  whether  before 
or  after  trial  or  sentence  and  before  he  is  set  at  liberty  by 
proper  authority,  shall  be  punished  as  a  court-martial  may 
direct. 

Art.  69,  Code  of  1916,  reads  as  follows : 

"  ART.  69.  ARREST  OR  CONFINEMENT  OP  ACCUSED  PERSONS. — An  officer  charged 
with  crime  or  with  a  serious  offense  under  these  articles  shall  be  placed  in 
arrest  by  the  commanding  officer,  and  in  exceptional  cases  an  officer  so  charged 
may  be  placed  in  confinement  by  the  same  authority.  A  soldier  charged  with 
crime  or  with  a  serious  offense  under  these  articles  shall  be  placed  in  confine 
ment,  and  when  charged  with  a  minor  offense  he  may  be  placed  in  arrest.  Any 
other  person  subject  to  military  law  charged  with  crime  or  with  a  serious 
offense  under  these  articles  shall  be  placed  in  confinement  or  in  arrest,  as 
circumstances  may  require ;  and  when  charged  with  a  minor  offense  such 
person  may  be  placed  in  arrest.  Any  person  placed  in  arrest  under  the  provi- 
sions of  this  article  shall  thereby  be  restricted  to  his  barracks,  quarters,  or 
tent,  unless  such  limits  shall  be  enlarged  by  proper  authority.  Any  officer 
who  breaks  his  arrest  or  who  escapes  from  confinement  before  he  is  set  at 
liberty  by  proper  authority  shall  be  dismissed  from  the  service  or  suffer  such 
other  punishment  as  a  court-martial  may  direct,  and  any  other  person  subject 
to  military  law  who  escapes  from  confinement  or  who  breaks  his  arrest  before 
he  is  set  at  liberty  by  proper  authority  shall  be  punished  as  a  court-martial 
may  direct." 

ART.  70.  CHARGES;  ACTION  UPON.— Charges  and  specifica- 
tions must  be  signed  by  a  person  subject  to  military  law,  and 
under  oath  either  that  he  has  personal  knowledge  of,  or  has 
investigated,  the  matters  set  forth  therein,  and  that  the  same 
are  true  in  fact,  to  the  best  of  his  knowledge  and  belief. 

No  charge  will  be  referred  for  trial  until  after  a  thorough  and 
impartial  investigation  thereof  shall  have  been  made.  This  in- 


520 


THE  ARTICLES  OF  WAR.  ART.       70 

vestigation  will  include  inquiries  as  to  the  truth  of  the  matter 
set  forth  in  said  charges,  form  of  charges,  and  what  disposition 
of  the  case  should  be  made  in  the  interest  of  justice  and  disci- 
pline. At  such  investigation  full  opportunity  shall  be  given  to 
the  accused  to  cross-examine  witnesses  against  him  if  they  are 
available  and  to  present  anything  he  may  desire  in  his  own 
behalf  either  in  defense  or  mitigation,  and  the  investigating 
officer  shall  examine  available  witnesses  requested  by  the  ac- 
cused. If  the  charges  are  forwarded  after  such  investigation, 
they  shall  be  accompanied  by  a  statement  of  the  substance  of 
the  testimony  taken  on  both  sides. 

Before  directing  the  trial  of  any  charge  by  general  court- 
martial  the  appointing  authority  will  refer  it  to  his  staff  judge 
advocate  for  consideration  and  advice. 

When  any  person  subject  to  military  law  is  placed  in  arrest 
or  confinement  immediate  steps  will  be  taken  to  try  the  person 
accused  or  to  dismiss  the  charge  and  release  him.  Any  officer 
who  is  responsible  for  unnecessary  delay  in  investigating  or 
carrying  the  case  to  a  final  conclusion  shall  be  punished  as  a 
court-martial  may  direct.  When  a  person  is  held  for  trial  by 
general  court-martial  the  commanding  officer  will,  within  eight 
days  after  the  accused  is  arrested  or  confined,  if  practicable, 
forward  <  the  charges  to  the  officer  exercising  general  court- 
martial  jurisdiction  and  furnish  the  accused  a  copy  of  such 
charges.  If  the  same  be  not  practicable,  he  will  report  to  su- 
perior authority  the  reasons  for  delay.  The  trial  judge  advocate 
will  cause  to  be  served  upon  the  accused  a  copy  of  the  charges 
upon  which  trial  is  to  be  had,  and  a  failure  so  to  serve  such 
charges  will  be  ground  for  a  continuance  unless  the  trial  be  had 
on  the  charges  furnished  the  accused  as  hereinbefore  provided. 
In  time  of  peace  no  person  shall,  against  his  objection,  be 
brought  to  trial  before  a  general  court-martial  within  a 
period  of  five  days  subsequent  to  the  service  of  charges 
upon  him. 

Art.  70,  Code  of  1916,  read  as  follows : 

"  ART.  70.  INVESTIGATION  OF  AND  ACTION  UPON  CHARGES. — No  person  put  In 
arrest  shall  be  continued  in  confinement  more  than  8  days,  or  until  such 
time  as  a  court-martial  can  be  assembled.  When  any  person  is  put  in  arrest 
for  the  purpose  of  trial,  except  at  remote  military  posts  or  stations,  the 
officer  by  whose  order  he  is  arrested  shall  see  that  a  copy  of  the  charges  on 
which  he  is  to  be  tried  is  served  upon  him  within  8  days  after  his  arrest, 
and  that  he  is  brought  to  trial  within  ten  days  thereafter,  unless  the  necessi- 

521 


ART.  71  APPENDIX  1. 

ties  of  the  service  prevent  such  trial  ;  and  then  he  shall  be  brought  to  trial 
within  thirty  days  after  the  expiration  of  said  ten  days.  If  a  copy  of  the 
charges  be  not  served,  or  the  arrested  person  be  not  brought  to  trial,  as 
herein  required,  the  arrest  shall  cease.  But  persons  released  from  arrest, 
under  the  provisions  of  this  article,  may  be  tried,  whenever  the  exigencies  of 
the  service  shall  permit,  within  twelve  months  after  such  release  from  arrest : 
Provided,  That  in  time  of  peace  no  person  shall,  against  his  objection,  be 
brought  to  trial  before  a  general  court-martial  within  a  period  of  five  days 
subsequent  to  the  service  of  charges  upon  him." 

ART.  71.  REFUSAL  TO  RECEIVE  AND  KEEP  PRISONERS. — No  pro- 
vost marshal  or  commander  of  a  guard  shall  refuse  to  re- 
ceive or  keep  any  prisoner  committed  to  his  charge  by  an 
officer  belonging  to  the  forces  of  the  United  States,  provided 
the  officer  committing  shall,  at  the  time,  deliver  an  account 
in  writing,  signed  by  himself,  of  the  crime  or  offense  charged 
against  the  prisoner.  Any  officer  or  soldier  so  refusing  shall 
be  punished  as  a  court-martial  may  direct. 

ART.  72.  REPORT  or  PRISONERS  RECEIVED. — Every  com- 
mander of  a  guard  to  whose  charge  a  prisoner  is  committed 
shall,  within  twenty-four  hours  after  such  confinement,  or  as 
soon  as  he  is  relieved  from  his  guard,  report  in  writing  to  the 
commanding  officer  the  name  of  such  prisoner,  the  offense 
charged  against  him,  and  the  name  of  the  officer  committing 
him ;  and  if  he  fails  to  make  such  report,  he  shall  be  punished 
as  a  court-martial  may  direct. 

ART.  73.  RELEASING  PRISONER  WITHOUT  PROPER  AUTHOR- 
ITY.— Any  person  subject  to  military  law  who,  without 
proper  authority,  releases  any  prisoner  duly  committed  to  his 
charge,  or  who  through  neglect  or  design  suffers  any  pris- 
oner so  committed  to  escape,  shall  be  punished  as  a  court- 
martial  may  direct. 

ART.  74.  DELIVERY  OF  OFFENDERS  TO  CIVIL  AUTHORITIES. — 
When  any  person  subject  to  military  law,  except  one  who  is 
held  by  the  military  authorities  to  answer,  or  who  is  awaiting 
trial  or  result  of  trial,  or  who  is  undergoing  sentence  for  a 
crime  or  offense  punishable  under  these  articles,  is  accused 
of  a  crime  or  offense  committed  within  the  geographical 
limits  of  the  States  of  the  Union  and  the  District  of  Colum- 
bia, and  punishable  by  the  laws  of  the  land,  the  commanding 
officer  is  required,  except  in  time  of  war,  upon  application 
duly  made,  to  use  his  utmost  endeavor  to  deliver  over  such 
accused  person  to  the  civil  authorities,  or  to  aid  the  officers  of 

522 


THE  ARTICLES   OF  WAR.  ART.    76 

justice  in  apprehending  and  securing  him,  in  order  that  he 
may  be  brought  to  trial.  Any  commanding  officer  who  upon 
such  application  refuses  or  willfully  neglects,  except  in  time 
of  war,  to  deliver  over  such  accused  person  to  the  civil 
authorities  or  to  aid  the  officers  of  justice  in  apprehending 
and  securing  him  shall  be  dismissed  from  the  service  or 
suffer  such  other  punishment  as  a  court-martial  may  direct. 
When,  under  the  provisions  of  this  article,  delivery  is  made 
to  the  civil  authorities  of  an  offender  undergoing  sentence  of 
a  court-martial,  such  delivery,  if  followed  by  conviction,  shall 
be  held  to  interrupt  the  execution  of  the  sentence  of  the  court- 
martial,  and  the  offender  shall  be  returned  to  military  cus- 
tody, after  having  answered  to  the  civil  authorities  for  his 
oifense,  for  the  completion  of  the  said  court-martial  sentence. 

E.    WAR  OFFENSES. 

ART.  75.  MISBEHAVIOR  BEFORE  THE  ENEMY. — Any  officer  or 
soldier  who,  before  the  enemy,  misbehaves  himself,  rims 
away,  or  shamefully  abandons  or  delivers  up  or  by  any  mis- 
conduct, disobedience,  or  neglect  endangers  the  safety  of  any 
fort,  post,  camp,  guard,  or  other  command  which  it  is  his 
duty  to  defend,  or  speaks  words  inducing  others  to  do  the  like, 
or  casts  away  his  arms  or  ammunition,  or  quits  his  post  or 
colors  to  plunder  or  pillage,  or  by  any  means  whatsoever  oc- 
casions false  alarms  in  camp,  garrison,  or  quarters,  shall  suf- 
fer death  or  such  other  punishment  as  a  court-martial  may 
direct. 

The  words  preceding  the  word  "  fort "  in  art.  75,  Code  of  1916,  were  as 
follows :  "  Any  officer  or  soldier  who  misbehaves  himself  before  the  enemy, 
runs  away,  or  shamefully  abandons  or  delivers  up  any  "  ;  otherwise  the  same. 

ART.  76.  SUBORDINATES  COMPELLING  COMMANDER  TO  SUR- 
RENDER.— Any  person  subject  to  military  law  who  compels  or 
attempts  to  compel  any  commander  of  any  garrison,  fort,  post, 
camp,  guard,  or  other  command,  to  give  it  up  to  the  enemy 
or  to  abandon  it  shall  be  punishable  with  death  or  such  other 
punishment  as  a  court-martial  may  direct. 

Art.  76,  Code  of  1916,  read  as  follows : 

"ART.  76.  SUBORDINATES  COMPELLING  COMMANDER  TO  SCRRENDER. — If  any 
commander  of  any  garrison,  fort,  post,  camp,  guard,  or  other  command  is 
compelled,  by  the  officers  or  soldiers  under  his  command,  to  give  it  up  to  the 
enemy  or  to  abandon  it,  the  officers  or  soldiers  so  offending  shall  suffer  death 
or  such  other  punishment  as  a  court-martial  may  direct." 


ART.  77  APPENDIX  l. 

ART.  77.  IMPROPER  USE  OF  COUNTERSIGN. — Any  person  sub- 
ject to  military  law  who  makes  known  the  parole  or  counter- 
sign to  any  person  not  entitled  to  receive  it  according  to  the 
rules  and  discipline  of  war.  or  gives  a  parole  or  countersign 
different  from  that  which  he  received,  shall,  if  the  offense  be 
committed  in  time  of  war,  suffer  death  or  such  other  punish- 
ment as  a  court-martial  may  direct. 

ART.  78.  FORCING  A  SAFEGUARD. — Any  person  subject  to 
military  law  who,  in  time  of  war,  forces  a  safeguard  shall 
suffer  death  or  such  other  punishment  as  a  court-martial  may 
direct, 

ART.  79.  CAPTURED  PROPERTY  TO  BE  SECURED  FOR  PUBLIC 
SERVICE. — All  public  property  taken  from  the  enemy  is  the 
property  of  the  United  States  and  shall  be  secured  for  the 
service  of  the  United  States,  and  any  person  subject  to  mili- 
tary law  who  neglects  to  secure  such  property  or  is  guilty  of 
wrongful  appropriation  thereof  shall  be  punished  as  a  court- 
martial  may  direct. 

ART.  80.  DEALING  IN  CAPTURED  OR  ABANDONED  PROPERTY. — 
Any  person  subject  to  military  law  who  buys,  sells,  trades,  or 
in  any  way  deals  in  or  disposes  of  captured  or  abandoned 
property,  whereby  he  shall  receive  or  expect  any  profit,  ben- 
efit, or  advantage  to  himself  or  to  any  other  person  directly 
or  indirectly  connected  with  himself,  or  who  fails  whenever 
such  property  comes  into  his  possession  or  custody  or  within 
his  control  to  give  notice  thereof  to  the  proper  authority  and 
to  turn  over  such  property  to  the  proper  authority  without 
delay,  shall,  on  conviction  thereof,  be  punished  by  fine  or  im- 
prisonment, or  by  such  other  punishment  as  a  court-martial, 
military  commission,  or  other  military  tribunal  may  adjudge, 
or  by  any  or  all  of  said  penalties. 

ART.  81.  KELIEVING,  CORRESPONDENCE  WITH,  OR  AIDING  THE 
ENEMY. — Whosoever  relieves  or  attempts  to  relieve  the  enemy 
with  arms,  ammunition,  supplies,  money,  or  other  thing,  or 
knowingly  harbors  or  protects  or  holds  correspondence  with 
or  gives  intelligence  to  the  enemy,  either  directly  or  indirectly, 
shall  suffer  death  or  such  other  punishment  as  a  court-martial 
or  military  commission  may  direct. 

ART.  82.  SPIES. — Any  person  who  in  time  of  war  shall  be 
found  lurking  or  acting  as  a  spy  in  or  about  any  of  the  fortifi- 

624 


THE  ARTICLES  OF  WAR.  ART.    87 

cations,  posts,  quarters,  or  encampments  of  any  of  the  armies 
of  the  United  States,  or  elsewhere,  shall  be  tried  by  a  general 
court-martial  or  by  a  military  commission,  and  shall,  on  con- 
viction thereof,  suffer  death. 

F.  MISCELLANEOUS  CRIMES  AND  OFFENSES. 

ART.  83.  MILITARY  PROPERTY — WILLFUL  OR  NEGLIGENT  LOSS, 
DAMAGE,  OR  WRONGFUL  DISPOSITION. — Any  person  subject  to 
military  law  who  willfully,  or  through  neglect,  suffers  to  be 
lost,  spoiled,  damaged,  or  wrongfully  disposed  of,  any  mili- 
tary property  belonging  to  the  United  States  shall  make  good 
the  loss  or  damage  and  suffer  such  punishment  as  a  court- 
martial  may  direct. 

ART  84.  WASTE  OR  UNLAWFUL  DISPOSITION  OF  MILITARY 
PROPERTY  ISSUED  TO  SOLDIERS. — Any  soldier  who  sells  or 
wrongfully  disposes  of  or  willfully  or  through  neglect  in- 
jures or  loses  any  horse,  arms,  ammunition,  accouterments, 
equipment,  clothing,  or  other  property  issued  for  use  in  the 
military  service,  shall  be  punished  as  a  court-martial  may 
direct. 

ART.  85.  DRUNK  ON  DUTY. — Any  officer  who  is  found  drunk 
on  duty  shall,  if  the  offense  be  committed  in  time  of  war, 
be  dismissed  from  the  service  and  suffer  such  other  punish- 
ment as  a  court-martial  may  direct;  and  if  the  offense  be 
committed  in  time  of  peace,  he  shall  be  punished  as  a  oourt- 
martial  may  direct.  Any  person  subject  to  military  law, 
except  an  officer,  who  is  found  drunk  on  duty  shall  be  pun- 
ished as  a  court-martial  may  direct. 

ART.  86.  MISBEHAVIOR  OF  SENTINEL. — Any  sentinel  who  is 
found  drunk  or  sleeping  upon  his  post,  or  who  leaves  it 
before  he  is  regularly  relieved,  shall,  if  the  offense  be  com- 
mitted in  time  of  war,  suffer  death  or  such  other  punishment 
as  a  court-martial  may  direct;  and  if  the  offense  be  com- 
mitted in  time  of  peace,  he  shall  suffer  any  punishment,  ex- 
cept death,  that  a  court-martial  may  direct. 

ART.  87.  PERSONAL  INTEREST  IN  SALE  OF  PROVISIONS. — Any 
officer  commanding  in  any  garrison,  fort,  barracks,  camp,  or 
other  place  where  troops  of  the  United  States  may  be  serv- 

21358°— 20 34 

525 


ART.  88  APPENDIX  t, 

ing  who,  for  his  private  advantage,  lays  any  duty  or  imposi- 
tion upon  or  is  interested  in  the  sale  of  any  victuals  or  other 
necessaries  of  life  brought  into  such  garrison,  fort,  barracks, 
camp,  or  other  place  for  the  use  of  the  troops,  shall  be  dis- 
missed from  the  service  and  suffer  such  other  punishment  as 
a  court-martial  may  direct. 

ART.  88.  INTIMIDATION  or  PERSONS  BRINGING  PROVISIONS. — 
Any  person  subject  to  military  law  who  abuses,  intimidates, 
does  violence  to,  or  wrongfully  interferes  with  any  person 
bringing  provisions,  supplies,  or  other  necessaries  to  the 
camp,  garrison,  or  quarters  of  the  forces  of  the  United 
States  shall  suffer  such  punishment  as  a  court-martial  may 
direct. 

ART.  89.  GOOD  ORDER  TO  BE  MAINTAINED  AND  WRONGS  RE- 
DRESSED.— All  persons  subject  to  military  law  are  to  behave 
themselves  orderly  in  quarters,  garrison,  camp,  and  on  the 
march ;  and  any  person  subject  to  military  law  who  commits 
any  waste  or  spoil,  or  willfully  destroys  any  property  what- 
soever (unless  by  order  of  his  commanding  officer),  or  com- 
mits any  kind  of  depredation  or  riot,  shall  be  punished  as 
a  court-martial  may  direct.  Any  commanding  officer  who, 
upon  complaint  made  to  him,  refuses  or  omits  to  see  repara- 
tion made  to  the  party  injured,  in  so  far  as  the  offender's  pay 
shall  go  toward  such  reparation,  as  provideo  for  in  article 
105,  shall  be  dismissed  from  the  service,  or  otherwise  pun- 
ished, as  a  court-martial  may  direct. 

ART.  90.  PROVOKING  SPEECHES  OR  GESTURES. — No  person  sub- 
ject to  military  law  shall  use  any  reproachful  or  provoking 
speeches  or  gestures  to  another;  and  any  person  subject  to 
military  law  who  offends  against  the  provisions  of  this 
article  shall  be  punished  as  a  court-martial  may  direct. 

ART.  91.  DUELING. — Any  person  subject  to  military  law 
who  fights  or  promotes  or  is  concerned  in  or  connives  at 
fighting  a  duel,  or  who,  having  knowledge  of  a  challenge  sent 
or  about  to  be  sent,  fails  to  report  the  fact  promptly  to  the 
proper  authority,  shall,  if  an  officer,  be  dismissed  from  the 
service  or  suffer  such  other  punishment  as  a  court-martial 
may  direct;  and  if  any  other  person  subject  to  military  law, 
bhall  suffer  such  punishment  as  a  court-martial  may  direct. 


526 


THE  ARTICLES  OF  WAR.  ART.   94 

ART.  92.  MURDER — RAPE. — Any  person  subject  to  military 
law  who  commits  murder  or  rape  shall  suffer  death  or  impris- 
onment for  life,  as  a  court-martial  may  direct ;  but  no  person 
shall  be  tried  by  court-martial  for  murder  or  rape  committed 
within  the  geographical  limits  of  the  States  of  the  Union  and 
the  District  of  Columbia  in  time  of  peace. 

ART.  93.  VARIOUS  CRIMES. — Any  person  subject  to  military 
law  who  commits  manslaughter,  mayhem,  arson,  burglary, 
housebreaking,  robbery,  larceny,  embezzlement,  perjury,  for- 
gery, sodomy,  assault  with  intent  to  commit  any  felony,  as- 
sault with  intent  to  do  bodily  harm  with  a  dangerous  weapon, 
instrument,  or  other  thing,  or  assault  with  intent  to  do  bodily 
harm,  shall  be  punished  as  a  court-martial  may  direct. 

ART.  94.  FRAUDS  AGAINST  THE  GOVERNMENT. — Any  person 
subject  to  -military  law  who  makes  or  causes  to  be  made  any 
claim  against  the  United  States  or  any  officer  thereof,  know- 
ing such  claim  to  be  false  or  fraudulent ;  or 

Who  presents  or  causes  to  be  presented  to  any  person  in  the 
civil  or  military  service  thereof,  for  approval  or  payment, 
any  claim  against  the  United  States,  or  any  officer  thereof, 
knowing  such  claim  to  be  false  or  fraudulent ;  or 

Who  enters  into  any  agreement  or  conspiracy  to  defraud 
the  United  States  by  obtaining,  or  aiding  others  to  obtain,  the 
allowance  or  payment  of  any  false  or  fraudulent  claim ;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 
obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  against  any  officer  thereof,  makes 
or  uses,  or  procures,  or  advises  the  making  or  use  of,  any 
writing  or  other  paper  knowing  the  same  to  contain  any  false 
or  fraudulent  statements ;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  ob- 
tain, the  approval,  allowance,  or  payment  of  any  claim- 
against  the  United  States  or  any  officer  thereof,  makes  or  pro- 
cures, or  advises  the  making  of,  any  oath  to  any  fact  or  to  any 
writing  or  other  paper  knowing  such  oath  to  be  false ;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  ob- 
tain, the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  any  officer  thereof,  forges  or 
counterfeits,  or  procures,  or  advises  the  forging  or  counter- 


r>27 


ART.  94  APPENDIX  1. 

feiting  of  any  signature  upon  any  writing  or  other  paper,  or 
uses,  or  procures,  or  advises  the  use  of  any  such  signature, 
knowing  the  same  to  be  forged  or  counterfeited ;  or 

Who,  having  charge,  possession,  custody,  or  control  of  any 
money  or  other  property  of  the  United  States,  furnished  or 
intended  for  the  military  service  thereof,  knowingly  delivers, 
or  causes  to  be  delivered,  to  any  person  having  authority  to 
receive  the  same,  any  amount  thereof  less  than  that  for  which 
he  receives  a  certificate  or  receipt;  or 

Who,  being  authorized  to  make  or  deliver  any  paper  certi- 
fying the  receipt  of  any  property  of  the  United  States  fur- 
nished or  intended  for  the  military  service  thereof,  makes  or 
delivers  to  any  person  such  writing,  without  having  full 
knowledge  of  the  truth  of  the  statements  therein  contained 
and  with  intent  to  defraud  the  United  States ;  or 

Who  steals,  embezzles,  knowingly  and  willfully  misap- 
propriates, applies  to  his  own  use  or  benefit,  or  wrongfully 
or  knowingly  sells  or  disposes  of  any  ordnance,  arms,  equip- 
ments, ammunition,  clothing,  subsistence  stores,  mone}^  or 
other  property  of  the  United  States  furnished  or  intended 
for  the  military  service  thereof;  or 

Who  knowingly  purchases  or  receives  in  pledge  for  any  ob- 
ligation or  indebtedness  from  any  soldier,  officer,  or  other  per- 
son who  is  a  part  of  or  employed  in  said  forces  or  service,  any 
ordnance,  arms,  equipment,  ammunition,  clothing,  sub- 
sistence stores,  or  other  property  of  the  United  States,  such 
soldier,  officer,  or  other  person  not  having  lawful  right  to  sell 
or  pledge  the  same ; 

Shall,  on  conviction  thereof,  be  punished  by  fine  or  impris- 
onment, or  by  such  other  punishment  as  a  court-martial  may 
adjudge,  or  by  any  or  all  of  said  penalties.  And  if  any  per- 
son, being  guilty  of  any  of  the  offenses  aforesaid  while  in  the 
military  service  of  the  United  States,  receives  his  discharge 
or  is  dismissed  from  the  service,  he  shall  continue  to  be  liable 
to  be  arrested  and  held  for  trial  and  sentence  by  a  court- 
martial  in  the  same  manner  and  to  the  same  extent  as  if  he 
had  not  received  such  discharge  nor  been  dismissed.  And  if 
any  officer,  being  guilty,  while  in  the  military  service  of  the 


528 


THE  ARTICLES   OF  WAR.  ART.    99 

United  States,  of  embezzlement  of  ration  savings,  post  exchange, 
company,  or  other  like  funds,  or  of  embezzlement  of  money  or 
other  property  intrusted  to  his  charge  by  an  enlisted  man  or  men, 
receives  his  discharge,  or  is  dismissed,  or  is  dropped  from  the 
rolls,  he  shall  continue  to  be  liable  to  be  arrested  and  held  for 
trial  and  sentence  by  a  court  martial  in  the  same  manner  and  to 
the  same  extent  as  if  he  had  not  been  so  discharged,  dismissed, 
or  dropped  from  the  rolls. 

ART.  95.  CONDUCT  UNBECOMING  AN  OFFICER  AND  GENTLE- 
MAN.— Any  officer  or  cadet  who  is  convicted  of  conduct  un- 
becoming an  officer  and  a  gentleman  shall  be  dismissed  from 
the  service.  . 

ART.  96.  GENERAL  ARTICLE. — Though  not  mentioned  in 
these  articles,  all  disorders  and  neglects  to  the  prejudice  of 
good  order  and  military  discipline,  all  conduct  of  a  nature 
to  bring  discredit  upon  the  military  service,  and  all  crimes  or 
offenses  not  capital,  of  which  persons  subject  to  military  law 
may  be  guilty,  shall  be  taken  cognizance  of  by  a  general  or 
special  or  summary  court-martial,  according  to  the  nature 
and  degree  of  the  offense,  and  punished  at  the  discretion  of 
such  court. 

IV.  COURTS  OF  INQUIRY. 

ART.  97.  WHEN  AND  BY  WHOM  ORDERED. — A  court  of  in- 
quiry to  examine  into  the  nature  of  any  transaction  of  or  ac- 
cusation or  imputation  against  any  officer  or  soldier  may  be 
ordered  by  the  President  or  by  any  commanding  officer ;  but 
a  court  of  inquiry  shall  not  be  ordered  by  any  commanding 
officer  except  upon  the  request  of  the  officer  or  soldier  whose 
conduct  is  to  be  inquired  into. 

ART.  98.  COMPOSITION. — A  court  of  injuiry  shall  consist  of 
three  or  more  officers.  For  each  court  of  inquiry  the  au- 
thority appointing  the  court  shall  appoint  a  recorder. 

ART.  99.  CHALLENGES. — Members  of  a  court  of  inquiry 
may  be  challenged  by  the  party  whose  conduct  is  to  be  in- 
quired into,  but  only  for  cause  stated  to  the  court.  The  court 
shall  determine  the  relevancy  and  validity  of  any  challenge, 
and  shall  not  receive  a  challenge  to  more  than  one  member  at 


529 


ART.  100  APPENDIX  1. 

a  time.  The  party  whose  conduct  is  being  inquired  into  shall 
have  the  right  to  be  represented  before  the  court  by  counsel 
of  his  own  selection,  if  such  counsel  be  reasonably  available. 

ART.  100.  OATH  OF  MEMBERS  AND  RECORDERS. — The  recorder 
of  a  court  of  inquiry  shall  administer  to  the  members  the  fol- 
lowing oath:  "You,  A.  B.,  do  swear  (or  affirm)  that  you 
will  well  and  truly  examine  and  inquire,  according  to  the 
evidence,  into  the  matter  now  before  you  without  partiality, 
favor,  affection,  prejudice,  or  hope  of  reward.  So  help  you 
God."  After  which  the  president  of  the  court  shall  admin- 
ister to  the  recorder  the  following  oath :  "  You,  A.  B.,  do 
swear  (or  affirm)  that  you  will,  according  to  your  best  abili- 
ties, accurately  and  impartially  record  the  proceedings  of  the 
court  and  the  evidence  to  be  given  in  the  case  in  hearing.  So 
help  you  God." 

In  case  of  affirmation  the  closing  sentence  of  adjuration 
will  be  omitted. 

ART.  101.  POWERS;  PROCEDURE. — A  court  inquiry  and 
the  recorder  thereof  shall  have  the  same  power  to  summon 
and  examine  witnesses  as  is  given  to  courts-martial  and  the 
trial  judge  advocate  thereof.  Such  witnesses  shall  take  the 
same  oath  or  affirmation  that  is  taken  by  witnesses  before 
courts-martial.  A  reporter  or  an  interpreter  for  a  court  of 
inquiry  shall,  before  entering  upon  his  duties,  take  the  oath 
or  affirmation  required  of  a  reporter  or  an  interpreter  for  a 
court-martial.  The  party  whose  conduct  is  being  inquired 
into  or  his  counsel,  if  any,  shall  be  permitted  to  examine  and 
cross-examine  witnesses  so  as  fully  to  investigate  the  cir- 
cumstances in  question. 

ART.  102.  OPINION  ON  MERITS  OF  CASE. — A  court  of  inquiry 
shall  not  give  an  opinion  on  the  merits  of  the  case  inquired 
into  unless  specially  ordered  to  do  so. 

ART.  103.  RECORD  OF  PROCEEDINGS — How  AUTHENTICATED. — 
Each  court  of  inquiry  shall  keep  a  record  of  its  proceedings, 
which  shall  be  authenticated  by  the  signature  of  the  presi- 
dent and  the  recorder  thereof,  and  be  forwarded  to  the  con- 
vening authority.  In  case  the  record  can  not  be  authenti- 
cated by  the  recorder,  by  reason  of  his  death,  disability,  or 


530 


THE  ARTICLES  OF  WAR.  ART.    104 

absence,  it  shall  be  signed  by  the  president  and  by  one  other 
member  of  the  court. 

V.  MISCELLANEOUS  PROVISIONS. 

ART.  104.  DISCIPLINARY  POWERS  OF  COMMANDING  OFFICERS.— 
Under  such  regulations  as  the  President  may  prescribe,  the 
.commanding  officer  of  any  detachment,  company,  or  higher 
command  may,  for  minor  offenses,  impose  disciplinary  pun- 
ishments upon  persons  of  his  command  without  the  interven- 
tion of  a  court-martial,  unless  the  accused  demands  trial  by 
court-martial. 

The  disciplinary  punishments  authorized  by  this  article 
may  include  admonition,  reprimand,  withholding  of  privi- 
leges for  not  exceeding  one  week,  extra  fatigue  for  not  exceed- 
ing one  week,  restriction  to  certain  specified  limits  for  not  ex- 
ceeding one  week,  and  hard  labor  without  confinement  for  not 
exceeding  one  week,  but  shall  not  include  forfeiture  of  pay  or 
confinement  under  guard ;  except  that  in  time  of  war  or  grave 
public  emergency  a  commanding  officer  of  the  grade  of  brigadier 
general  or  of  higher  grade  may,  under  the  provisions  of  this 
article  also  impose  upon  an  officer  of  his  command  below  the 
grade  of  a  major  a  forfeiture  of  not  more  than  one-half  of  such 
officer's  monthly  pay  for  one  month.  A  person  punished  under 
authority  of  this  article,  who  deems  his  punishment  unjust 
or  disproportionate  to  the  offense,  may,  through  the  proper 
channel,  appeal  to  the  next  superior  authority,  but  may  in 
the  meantime  be  required  to  undergo  the  punishment  ad- 
judged. The  commanding  officer  who  imposes  the  punish- 
ment, his  successor  in  command,  and  superior  authority  shall 
have  power  to  mitigate  or  remit  any  unexecuted  portion  of 
the  punishment.  The  imposition  and  enforcement  of  dis- 
ciplinary punishment  under  authority  of  this  article  for  any 
act  or  omission  shall  not  be  a  bar  to  trial  by  court-martial 
for  a  crime  or  offense  growing  out  of  the  same  act  or  omis- 
sion; but  the  fact  that  a  disciplinary  punishment  has  been 
enforced  may  be  shown  by  the  accused  upon  trial,  and  when 


531 


ART.  105  APPENDIX  1. 

so  shown  shall  be  considered  in  determining  the  measure  of 
punishment  to  be  adjudged  in  the  event  of  a  finding  of  guilty. 

This  article  omits  matter  which  appeared  in  the  first  paragraph  of  art.  104, 
Code  of  1916,  as  follows :  After  the  words  "  President  may  prescribe,"  the 
words  "  and  which  he  may  from  time  to  time  revoke,  alter,  or  add  to,"  and 
after  the  words  "  minor  offenses  "  the  words  "  not  denied  by  the  accused." 
The  first  sentence  of  the  second  paragraph  of  the  former  article  read  as  fol- 
lows: 

"  The  disciplinary  punishments  authorized  by  this  article  may  include  admo- 
nition, reprimand,  withholding  of  privileges,  extra  fatigue,  and  restriction  to 
certain  specified  limits,  but  shall  not  include  forfeiture  of  pay  or  confinement 
under  guard. 

ART.  105.  INJURIES  TO  PROPERTY — REDRESS  OF. — Whenever 
complaint  is  made  to  any  commanding  officer  that  damage 
has  been  done  to  the  property  of  any  person  or  that  his  prop- 
erty has  been  wrongfully  taken  by  persons  subject  to  military 
law,  such  complaint  shall  be  investigated  by  a  board  consist- 
ing of  any  number  of  officers  from  one  to  three,  which  board 
shall  be  convened  by  the  commanding  officer  and  shall  have, 
for  the  purpose  of  such  investigation,  power  to  summon  wit- 
nesses and  examine  them  upon  oath  or  affirmation,  to  receive 
depositions  or  other  documentary  evidence,  and  to  assess  the 
damages  sustained  against  the  responsible  parties.  The  as- 
sessment of  damages  made  by  such  board  shall  be  subject  to 
the  approval  of  the  commanding  officer,  and  in  the  amount 
approved  by  him  shall  be  stopped  against  the  pay  of  the  of- 
fenders. And  the  order  of  such  commanding  officer  directing 
stoppages  herein  authorized  shall  be  conclusive  on  any  dis- 
bursing officer  for  the  payment  by  him  to  the  injured  parties 
of  the  stoppages  so  ordered. 

Where  the  offenders  can  not  be  ascertained,  but  the  or- 
ganization or  detachment  to  which  they  belong  is  known, 
stoppages  to  the  amount  of  damages  inflicted  may  be  made 
and  assessed  in  such  proportion  as  may  be  deemed  just  upon 
the  individual  members  thereof  who  are  shown  to  have  been 
present  with  such  organization  or  detachment  at  the  time  the 
damages  complained  of  were  inflicted  as  determined  by  the 
approved  findings  of  the  board. 

The  words  "  person  of  "  appeared  in  the  title  of  the  former  article,  preced- 
ing the  word  "  property." 

ART.  106.  ARREST  OF  DESERTERS  BY  CIVIL  OFFICIALS. — It  shall 
be  lawful  for  any  civil  officer  having  authority  under  the 
laws  of  the  United  States,  or  of  any  State,  Territory,  District, 

532 


THE  ARTICLES   OF  WAR.  ART.   109 

or  possession  of  the  United  States,  to  arrest  offenders,  sum- 
marily to  arrest  a  deserter  from  the  military  service  of  the 
United  States  and  deliver  him  into  the  custody  of  the  military 
authorities  of  the  United  States. 

ART.  107.  SOLDIERS  TO  MAKE  GOOD  TIME  LOST. — Every  soldier 
who  in  an  existing  or  subsequent  enlistment  deserts  the  service 
of  the  United  States  or  without  proper  authority  absents 
himself  from  his  organization,  station,  or  duty  for  more  than 
one  day,  or  who  is  confined  for  more  than  one  day  under  sen- 
tence, or  while  awaiting  trial  and  disposition  of  his  case,  if 
the  trial  results  in  conviction,  or  through  the  intemperate  use 
of  drugs  or  alcoholic  liquor,  or  through  disease  or  injury  the 
result  of  his  own  misconduct,  renders  himself  unable  for 
more  than  one  day  to  perform  duty,  shall  be  liable  to  serve, 
after  his  return  to  a  full-duty  status,  for  such  period  as  shall, 
with  the  time  he  may  have  served  prior  to  such  desertion,  un- 
authorized absence,  confinement,  or  inability  to  perform  duty, 
amount  to  the  full  term  of  that  part  of  his  enlistment  period 
which  he  is  required  to  serve  with  his  organization  before  be- 
ing furloughed  to  the  Army  reserve. 

ART.  108.  SOLDIERS — SEPARATION  FROM  THE  SERVICE. — No 
enlisted  man,  lawfully  inducted  into  the  military  service  of 
the  United  States,  shall  be  discharged  from  said  service  with- 
out a  certificate  of  discharge,  signed  by  a  field  officer  of  the 
regiment  or  other  organization  to  which  the  enlisted  man 
belongs  or  by  the  commanding  officer  when  no  such  field  officer 
is  present ;  and  no  enlisted  man  shall  be  discharged  from  said 
service  before  his  term  of  service  has  expired,  except  by  order 
of  the  President,  the  Secretary  of  War,  the  commanding  of- 
ficer of  a  department,  or  by  sentence  of  a  general  court- 
martial. 

ART.  109.  OATH  OF  ENLISTMENT. — At  the  time  of  his  enlist- 
ment every  soldier  shall  take  the  following  oath  or  affirma- 
tion: "I, ,  do  solemnly  swear  (or  affirm)  that  I  will 

bear  true  faith  and  allegiance  to  the  United  States  of  Amer- 
ica; that  I  will  serve  them  honestly  and  faithfully  against 
all  their  enemies  whomsoever ;  and  that  I  will  obey  the  orders 
of  the  President  of  the  United  States  and  the  orders  of  the 
officers  appointed  over  me,  according  to  the  Rules  and  Arti- 


533 


ART.  HO  APPENDIX  1. 

cles  of  War."  This  oath  or  affirmation  may  be  taken  before 
any  officer. 

ART.  110.  CERTAIN  ARTICLES  TO  BE  READ  AND  EXPLAINED. — 
Articles  1,  2,  and  29,  54  to  96,  inclusive,  and  104  to  109,  in- 
clusive, shall  be  read  and  explained  to  every  soldier  at  the 
time  of  his  enlistment  or  muster  in,  or  within  six  days  there- 
after, and  shall  be  read  and  explained  once  every  six  months 
to  the  soldiers  of  every  garrison,  regiment,  or  company  in 
the  service  of  the  United  States. 

ART.  111.  COPY  OF  RECORD  OF  TRIAL. — Every  person  tried 
by  a  general  court-martial  shall,  on  demand  therefor,  made 
by  himself  or  by  any  person  in  his  behalf,  be  entitled  to  a 
copy  of  the  record  of  the  trial. 

ART.  112.  EFFECTS  OF  DECEASED  PERSONS — DISPOSITION  OF. — 
In  case  of  the  death  of  any  person  subject  to  military  law 
the  commanding  officer  of  the  place  of  command  will  permit 
the  legal  representative  or  widow  of  the  deceased,  if  present, 
to  take  possession  of  all  his  effects  then  in  camp  or  quarters ; 
and  if  no  legal  representative  or  widow  be  present,  the  com- 
manding officer  shall  direct  a  summary  court  to  secure  all 
such  effects,  and  said  summary  court  shall  have  authority  to 
collect  and  receive  any  debts  due  decedent's  estate  by  local 
debtors  and  to  pay  the  undisputed  local  creditors  of  decedent  in 
so  far  as  any  money  belonging  to  the  deceased  which  may  come 
into  said  summary  court's  possession  under  this  article  will  per- 
mit, taking  receipts  therefor  for  file  with  said  court's  final  report 
upon  its  transactions  to  the  War  Department;  and  as  soon  as 
practicable  after  the  collection  of  such  effects  said  summary 
court  shall  transmit  such  effects  and  any  money  collected, 
through  the  Quartermaster  Department,  at  Government 
expense,  to  the  widow  or  legal  representative  of  the  deceased, 
if  such  l>e  found  by  said  court,  or  to  the  son,  daughter,  father, 
provided  the  father  has  not  abandoned  the  support  of  his 
family,  mother,  brother,  sister,  or  the  next  of  kin  in  the 
order  named,  if  such  be  found  by  said  court,  or  the  beneficiary 
named  in  the  will  of  the  deceased,  if  such  be  found  by  said 
court,  and  said  court  shall  thereupon  make  to  the  War  De- 
partment a  full  report  of  its  transactions;  but  if  there  be 
none  of  the  persons  herein-above  named,  or  such  persons  or 


THE  ARTICLES  OF  WAR.  ART.    114 

their  addresses  are  not  known  to  or  readily  a-scertainable 
by  said  court,  and  the  said  court  shall  so  find,  said  summary 
court  shall  have  authority  to  convert  into  cash,  by  public 
or  private  sale,  not  earlier  than  thirty  days  after  the  death 
of  the  deceased,  all  effects  of  deceased  except  sabers,  insignia, 
decorations,  medals,  watches,  trinkets,  manuscripts,  and  other 
articles  valued  chiefly  as  keepsakes;  and  as  soon  as  prac- 
ticable after  converting  such  effects  into  cash  said  summary 
court  shall  deposit  with  the  proper  officer,  to  be  designated 
in  regulations,  any  cash  belonging  to  decedent's  estate,  and 
shall  transmit  a  receipt  for  such  deposits,  any  will  or  other 
papers  of  value  belonging  to  the  deceased,  any  sabers,  in- 
signia, decorations,  medals,  watches,  trinkets,  manuscripts, 
and  other  articles  valuable  chiefly  as  keepsakes,  together  with 
an  inventory  of  the  effects  secured  by  said  summary  court, 
and  a  full  account  of  its  transactions,  to  the  War  Department 
for  transmission  to  the  Auditor  for  the  War  Department  for 
action  as  authorized  by  law  in  the  settlement  of  accounts  of 
deceased  officers  and  enlisted  men  of  the  Army. 

The  provisions  of  this  article  shall  be  applicable  to  inmates 
of  the  United  States  Soldiers'  Home  who  die  in  any  United 
States  military  hospital  outside  of  the  District  of  Columbia 
where  sent  from  the  home  for  treatment. 

ART.  113.  INQUESTS. — When  at  any  post,  fort,  camp,  or 
other  place  garrisoned  by  the  military  forces  of  the  United 
States  and  under  the  exclusive  jurisdiction  of  the  United 
States,  any  person  shall  have  been  found  dead  under  cir- 
cumstances which  appear  to  require  investigation,  the  com- 
manding officer  will  designate  and  direct  a  summary  court- 
martial  to  investigate  the  circumstances  attending  the  death ; 
and,  for  this  purpose,  such  summary  court-martial  shall  have 
power  to  summon  witnesses  and  examine  them  upon  oath  or 
affirmation.  He  shall  promptly  transmit  to  the  post  or  other 
commander  a  report  of  his  investigation  and  of  his  findings 
as  to  the  cause  of  the  death. 

ART.  114.  AUTHORITY  TO  ADMINISTER  OATHS. — Any  judge 
advocate  or  acting  judge  advocate,  the  president  of  a  general 
or  special  court-martial,  any  summary  court-martial,  the 
trial  judge  advocate  or  any  assistant  trial  judge  advocate 


535 


ART.  115  APPENDIX  1. 

of  a  general  or  special  court-martial,  the  president  or  the 
recorder  of  a  court  of  inquiry  or  of  a  military  board,  any 
officer  designated  to  take  a  deposition,  any  officer  detailed  to 
conduct  an  investigation,  and  the  adjutant  of  any  command 
shall  have  power  to  administer  oaths  for  the  purposes  of 
the  administration  of  military  justice  and  for  other  purposes 
of  military  administration ;  and  in  foreign  places  where  the 
Army  may  be  serving  shall  have  the  general  powers  of  a 
notary  public  or  of  a  consul  of  the  United  States  in  the 
administration  of  oaths,  the  execution  and  acknowledgment 
of  legal  instruments,  the  attestation  of  documents,  and  all 
other  forms  of  notarial  acts  to  be  executed  by  persons  sub- 
ject to  military  law. 

ART.  115.  APPOINTMENT  or  REPORTERS  AND  INTERPRETERS. — 
Under  such  regulations  as  the  Secretary  of  War  may  from 
time  to  time  prescribe,  the  president  of  a  court-martial  or 
military  commission  or  a  court  of  inquiry  shall  have  power 
to  appoint  a  reporter,  who  shall  record  the  proceedings  of 
and  testimony  taken  before  such  court  or  commission  and 
may  set  down  the  same,  in  the  first  instance,  in  shorthand. 
Under  like  regulations  the  president  of  a  court-martial  or 
military  commission,  or  court  of  inquiry,  or  a  summary  court, 
may  appoint  an  interpreter,  who  shall  interpret  for  the  court 
or  commission. 

ART:  116.  POWERS  OF  ASSISTANT  TRIAL  JUDGE  ADVOCATE 
AND  OF  ASSISTANT  DEFENSE  COUNSEL.— An  assistant  trial 
judge  advocate  of  a  general  court-martial  shall  be  competent 
to  perform  any  duty  devolved  by  law,  regulation,  or  the  cus- 
tom of  the  service  upon  the  trial  judge  advocate  of  the  court. 
An  assistant  defense  counsel  shall  be  competent  likewise  to  per- 
form any  duty  devolved  by  law,  regulation,  or  the  custom  of 
the  service  upon  counsel  for  the  accused. 

ART.  117.  KEMOVAL  OF  CIVIL  SUITS. — When  any  civil  or 
criminal  prosecution  is  commenced  in  any  court  of  a  State 
against  any  officer,  soldier,  or  other  person  in  the  military 
service  of  the  United  States  on  account  of  any  act  done  under 
color  of  his  office  or  status,  or  in  respect  to  which  he  claims 
any  right,  title,  or  authority  under  any  law  of  the  United 
States  respecting  the  military  forces  thereof,  or  under  the  law 
of  war,  such  suit  or  prosecution  may  at  any  time  before  the 


536 


THE  ARTICLES   OF  WAR.  ART.    H9 

trial  or  final  hearing  thereof  be  removed  for  trial  into  the 
district  court  of  the  United  States  in  the  district  where  the 
same  is  pending  in  the  manner  prescribed  in  section  33  of  the 
Act  entitled  "An  Act  to  codify,  revise,  and  amend  the  laws 
relating  to  the  judiciary,"  approved  March  3,  1911,  and  the 
cause  shall  thereupon  be  entered  on  the  docket  of  said  dis- 
trict court  and  shall  proceed  therein  as  if  the  cause  had  been 
originally  commenced  in  said  district  court  and  the  same 
proceedings  had  been  taken  in  such  suit  or  prosecution  in 
said  district  court  as  shall  have  been  had  therein  in  said  State 
court  prior  to  its  removal,  and  said  district  court  shall  have 
full  power  to  hear  and  determine  said  cause. 

ART.  118. — OFFICERS,  SEPARATION  FROM  SERVICE. — No  officer 
shall  be  discharged  or  dismissed  from  the  service  except  by 
order  of  the  President  or  by  sentence  of  a  general  court- 
martial;  and  in  time  of  peace  no  officer  shall  be  dismissed 
except  in  pursuance  of  the  sentence  of  a  general  court-martial 
or  in  mitigation  thereof ;  but  the  President  may  at  any  time 
drop  from  the  rolls  of  the  Army  any  officer  who  has  been 
absent  from  duty  three  months  without  leave  or  who  has  been 
absent  in  confinement  in  a  prison  or  penitentiary  for  three 
months  after  final  conviction  by  a  court  of  competent  juris- 
diction. 

ART.  119.  RANK  AND  PRECEDENCE  AMONG  REGULARS,  MILITIA, 
AND  VOLUNTEERS. — That  in  time  of  war  or  public  danger, 
when  two  or  more  officers  of  the  same  grade  are  on  duty  in 
the  same  field,  department,  or  command,  or  of  organizations 
thereof,  the  President  may  assign  the  command  of  the  forces 
of  such  field,  department,  or  command,  or  of  any  organization 
thereof,  without  regard  to  seniority  of  rank  in  the  same  grade. 

Same  as  first  sentence  of  art.  119,  Code  of  1916.  The  omitted  portion  read 
as  follows : 

"  In  the  absence  of  such  assignment  by  the  President,  officers  of  the  same 
grade  shall  rank  and  have  precedence  in  the  following  order,  without  regard  to 
date  of  rank  or  commission  as  between  officers  of  different  classes,  namely : 
First,  officers  of  the  Regular  Army  and  officers  of  the  Marine  Corps  detached 
for  service  with  the  Army  by  order  of  the  President ;  second,  officers  of  forces 
drafted  or  called  into  service  of  the  United  States ;  and,  third,  officers  of  the 
volunteer  forces  :  Provided,  That  officers  of  the  Regular  Army  holding  com- 
missions in  forces  drafted  or  called  into  the  service  of  the  United  States  or  in 
the  volunteer  forces  shall  rank  and  have  precedence  under  said  commissions  as 
if  they  were  commissions  in  the  Regular  Army ;  the  rank  of  officers  of  the 
Regular  Army  under  commissions  in  the  National  Guard  as  such  shall  not,  for 
the  purposes  of  this  article,  be  held  to  antedate  the  acceptance  of  such  officers 
into  the  service  of  the  United  States  under  said  commissions." 

537 


ART.  120  APPENDIX  1. 

ART.  120.  COMMAND  WHEN  DIFFERENT  CORPS  OR  COMMANDS 
HAPPEN  TO  JOIN. — When  different  corps  or  commands  of  the 
military  forces  of  the  United  States  happen  to  join  or  do 
duty  together,  the  officer  highest  in  rank  of  the  line  of  the 
Regular  Army,  Marine  Corps,  forces  drafted  or  called  into 
the  service  of  the  United  States,  or  Volunteers,  there  on  duty, 
shall,  subject  to  the  provisions  of  the  last  preceding  article, 
command  the  whole  and  give  orders  for  what  is  needful  in  the 
service,  unless  otherwise  directed  by  the  President. 

ART.  121. — COMPLAINTS  OF  WRONGS. — Any  officer  or  soldier 
who  believes  himself  wronged  by  his  commanding  officer,  and, 
upon  due  application  to  such  commander,  is  refused  redress, 
may  complain  to  the  general  commanding  in  the  locality 
where  the  officer  against  whom  the  complaint  is  made  is  sta- 
tioned. The  general  shall  examine  into  said  complaint  and 
take  proper  measures  for  redressing  the  wrong  complained 
of ;  and  he  shall,  as  soon  as  possible,  transmit  to  the  Depart- 
ment of  War  a  true  statement  of  such  complaint,  with  the 
proceedings  had  thereon. 

Sec.  2.  That  the  provisions  of  Chapter  II  of  this  Act  shall  take 
effect  and  be  in  force  eight  months  after  the  approval  of  this 
Act :  Provided,  That  articles  2,  23,  and  45  shall  take  effect  im- 
mediately. 

Sec.  3.  That  all  offenses  committed  and  all  penalties,  forfei- 
tures, fines,  or  liabilities  incurred  prior  to  the  taking  effect  of 
Chapter  II  of  this  Act,  under  any  law  embraced  in  or  modified, 
changed,  or  repealed  by  Chapter  II  of  this  Act,  may  be  prose- 
cuted, punished,  and  enforced  in  the  same  manner  and  with  the 
same  effect  as  if  this  Act  had  not  been  passed. 

See,  4.  That  section  1342  of  the  Revised  Statutes  of  the  United 
States  be,  and  the  same  is  hereby,  repealed,  and  all  laws  and 
parts  of  laws  in  so  far  as  they  are  inconsistent  with  this  Act  are 
hereby  repealed. 

R.  S.  1342  contained  the  former  Articles  of  War. 


633 


INDEX  TO  ARTICLES  OF  WAR. 


Art. 

Abandoned  property,  dealing  in 80 

Abandonment,  of  command  to  enemy 75 

Absence  without  leave : 

Officer  dropped  from  rolls  for 118 

Punishment  for 61 

Time  lost  to  be  made  good 107 

Abuse  of  persons  bringing  in  provisions 88 

Accouterments,  wasting,  injuring,  or  losing 84 

Accused : 

Appeal  to  superior  authority  by 104 

Copy  of  charges  furnished  to 70 

Counsel  for 17 

Refusal  or  failure  to  plead 21 

Right  to  copy  of  record  of  trial 111 

Right  to  cross-examine  witnesses 70 

Right  to  trial  by  court-martial . 104 

Rights  prejudiced  by  irregularities 37 

Acquittal : 

Announcement  by  court 29 

Reconsideration  of 40 

Acting  judge  advocates: 

Oaths  administered  by 114 

Power  to  act  as  notary  public  in  foreign  places 114 

Adjutants : 

Oaths  administered  by 114 

Powers  of  notary  public  in  foreign  places 114 

Ammunition : 

Casting  away 75 

Wasting  or  unlawfully  disposing  of 84 

Appeal  from  disciplinary  punishment 104 

Appointing  authority.     See  Convening  authority. 

Approval : 

Powers  incident  to  power  of 47 

Sentences,  by  convening  authority 46 

Sentences,  in  whole  or  part 47b 

Arms: 

Casting  away 75 

Wasting  or  unlawfully  disposing  of .  84 


539 


APPENDIX   1. 

Army  field  clerks:  Art. 

Not  triable  by  summary  courts-martial 14 

Power  to  stop  quarrels,  frays,  disorders 68 

Subject  to  military  law 2a 

Army  Nurse  Corps: 

Members  not  triable  by  summary  courts-martial 14 

Power  to  stop  quarrels,  frays,  disorders 68 

Subject  to  military  law 2a 

Army  of  the  United  States,  Articles  of  War  govern 2 

Arrest : 

Breaking,  punishment  for 69 

Deserters,  by  civil  officials 106 

Disobedience  of  order  of 68 

Duration  of 70 

Of  accused -  69 

Officers  charged  with  offense 69 

Soldiers  charged  with  offense 69 

Arson,  punishment  for 93 

Articles  of  War: 

Army  of  the  United  States  governed  by 2 

Certain  to  be  read  to  enlisted  men 110 

Jurisdiction 2 

Persons  subject  to 2 

Assault : 

Upon  superior  officer,  punishment  for 64 

With  intent  to  commit  felony 93 

With  intent  to  do  bodily  harm 93 

Assistant  defense  counsel: 

Associate  counsel  with  civil  counsel 17 

One  or  more  with  each  general  or  special  court-martial 11 

Powers  and  duties  of 116 

Assistant  judge  advocate : 

Oaths  administered  by 114 

Powers  and  duties  of 116 

Powers  of  notary  public  in  foreign  places 114 

B. 

Battalion,  definition  of  term Id 

Board  of  Review : 

Constituted  by  Judge  Advocate  General 50J 

Duties 501 

Rehearing  ordered  by 50$ 

Branding   prohibited 41 

Bribes,  taking  of,  on  muster 56 

Burglary,  punishment  for 93 


540 


INDEX  TO  ARTICLES  OF  WAR. 
C. 

Cadets.    See  United  States  Military  Academy.  Art. 

Camp  retainers  subject  to  military  law . 2d 

Capital  offenses : 

Depositions,  use  of  in  trials  for 25 

Records  of  courts  of  inquiry  adduced  by  defense  in  trial  for_  27 
See  also  Death  sentence. 

Captured  property: 

Dealing   in 80 

Secured  for  public  service 79 

Wrongful  appropriation  of 79 

Certificate  of  discharge,  compulsory  for  enlisted  men 108 

Challenge : 

Member  of  court  of  inquiry 99 

Method  of  voting  on 81 

Procedure 18 

Challenge  to  duel,  knowledge  of,  or  aiding 91 

Charges : 

Copy  furnished  to  accused ! 70 

Investigation  of 70 

Referred  to  staff  judge  advocate 70 

Who  may  sign 70 

Civil  authorities: 

Arrest  of  deserters  by 106 

Conviction  by,  effect  on  courts-martial  sentence 74 

Delivery  by,  of  persons  subject  to  military  law 74 

Delivery  of  offenders  to 74 

Civil  suits,  removal  of,  instituted  against  members  of  military 

forces 117 

Claims: 

False,  against  Government 94 

False  oaths  in  connection  with 94 

False  writings  or  papers  in  connection  with 94 

Clothing,  wasting  or  unlawfully  disposing  of 84 

Command,  when  different  corps  or  commands  join 120 

Commander  compelled  by  subordinates  to  surrender 76 

Commander  of  guard: 

Refusal  to  receive  or  keep  prisoners 71 

Report  on  prisoners  by 72 

Commanding  general,  complaint  of  wrongs  made  to 121 

Commanding  officers : 

Disciplinary  powers  of 104 

Duty  in  connection  with  redress  of  injuries  to  property 105 

Refusal  to  see  reparation  of  wrongs  made 89 

Company,  definition  of  term Ic 

21358°— 20 35 


641 


APPENDIX  t, 

Conduct:  Art. 

Prejudicial  to  good  order  and  discipline 96 

Unbecoming  an  officer  and  gentleman 95 

Confinement : 

Escaping  punishment 69 

Officer  charged  with  offense 69 

Officer  in  prison  or  penitentiary,  dropped  from  rolls 118 

Places  of,  when  lawful 42 

Soldier  charged  with  offense 69 

Special  courts-martial,  power  of 13 

Summary  courts-martial,  power  of 14 

Confirmation : 

Sentences,  by  President 48 

Sentences,  powers  incident  to  power  of 49 

Confirming  authority,  action  by,  required 40 

Congress  of  the  United  States,  disrespect  toward,  punishment 

for 62 

Conspiracy,  to  defraud  the  United  States  by  false  claims 94 

Consuls  of  United  States,  powers  of,  when  granted  to  Army 

officers 114 

Contempts,  punishment  for,  by  military  tribunals 82 

Continuances,  courts-martial  may  grant 20 

Convening  authority : 

Action  by 46 

Power  of  approval 46, 47 

Referring  of  charges  before  trial 70 

Conviction,  civil,  effect  on  courts-martial  sentence . 74 

Counsel : 

Appointment  of,  for  courts-martial 11 

For  accused 17 

For  accused  before  court  of  inquiry 99 

Powers  of  assistant  defense  counsel 116 

Countersign : 

Divulging  of 77 

Improper  use  of 77 

Courts-martial : 

Charges.    See  Charges. 

Classified 3 

Evidence.    See  Evidence. 
General — 

Accused  entitled  to  copy  of  record  of  trial-- 111 

Accuser  may  not  sit  on 8 

By  whom  appointed 8 

Closed  sessions 30 

Composition 5 

Disposition  of  records 85 


542 


INDEX  TO   ARTICLES  OF  WAR. 

Courts-martial — Continued. 

General —  Art. 

Examination  of  records 501 

Jurisdiction 12 

Records 33 

Witness  for  prosecution  may  not  sit  on 8 

Interpreters,  appointment  of 115 

Irregularities,  effect  of 37 

Judge  Advocate.    See  Judge  Advocate. 
Jurisdiction — 

Not  exclusive 15 

Limitations  as  to  number  of  trials 40 

Limitations  as  to  time 39 

Military— 

Detached  members  of  Marine  Corps  triable  by 2c 

Naval- 
Detached  members  of  Marine  Corps  triable  by 2o 

Persons  under  sentence  subject  to  military  law 2e 

Procedure , 17 

Proceedings — 

Effect  of  irregularities 37 

Qualification  of  members 4 

Records  returned  for  reconsideration 40 

Right  of  accused  to  demand  trial  by 104 

Rules  prescribed  by  President 38 

Special — 

Accuser  may  not  sit  on 9 

Closed  sessions 30 

Composition 6 

Disposition  of  records 36 

Jurisdiction 13 

Limitation  of  punishment 13 

Records 34 

Who  may  appoint _  9 

Witness  for  prosecution  may  not  sit  on 9 

Summary — 

Composition 7 

Disposition  of  records 36 

Effects  of  deceased  persons,  dispositions  of 112 

Investigation  of  death  by 113 

Jurisdiction 14 

Records 34 

Wljo  may  appoint 10 

Trial  by,  for  murder  or  rape , 92 

Who  may  serve 4 

Witnesses.    See  Witnesses. 


543 


APPENDIX  1. 

Courts  of  Inquiry:  Art. 

Authentication  of  proceedings - 103 

Challenge  of  member 99 

Composition  of 98 

Functions  of 97 

Interpreters,  appointment  of 115 

Oath  of  members  and  recorders 100 

Opinion,  when  given 102 

Powers 101 

Procedure 101 

Recorder  of,  powers 101 

Records  as  evidence 27 

When  and  by  whom  ordered 97 

Witnesses  for _' 101 

Cowardice,  accessory  penalty 44 

Crimes  not  capital 96 

Cross-examination,  witnesses  for  courts  of  inquiry,  by  accused 101 

D. 

Damages : 

To  military  property 83 

To  property,  redress  of 105 

Dangerous  weapon,  assault  with 93 

Death: 

Investigation  by  summary  court-martial 113 

Remission  of  suspended  sentence  by 52 

Death  sentence: 

Advising  or  aiding  desertion 59 

Assaulting  or  willfully  disobeying  superior  officers 64 

Confirmation  of,  by  President 48d 

Desertion  in  time  of  war 58 

Failure  to  suppress  mutiny  or  sedition 67 

Forcing  a  safeguard 78 

Improper  use  of  countersign 77 

Misbehavior  before  the  enemy 75 

Murder 92 

Mutiny 66 

Rape 92 

Relieving,  corresponding  with,  or  aiding  enemy 81 

Sedition 66 

Sentinel  drunk  or  sleeping  on  post 86 

Spies 82 

Subordinates  compelling  commander  to  surrender , 76 

Suspension   of 51 

When  lawful 43 

Deceased  persons,  disposition  of  effects  of 112 


544 


INDEX  TO  ARTICLES  OF  WAR. 

Defense  counsel :  Art. 

Accused's  rights  as  to 17 

Appointed  for  each  general  or  special  court-martial 11 

Associate  counsel  with  civil  counsel 17 

Definitions : 

Any  person  subject  to  military  law 2 

Battalion Id 

Company lc 

Officer la 

Persons  subject  to  military  law- 2 

Soldier Ib 

Delivery : 

Less  than  amount  receipted  for •       94 

Offenders  to  civil  authorities 74 

Depositions: 

Before  whom  taken 26 

When   admissible 25 

Desertion : 

Advising  or  aiding 59 

Arrest  of  deserters  by  civil  officials 106 

Enlistment  before  regularly  discharged 28 

Quitting  organization  to  avoid  duty 28 

Officer  entertaining  and  retaining  deserter 60 

Officer  leaving  before  resignation  accepted 28 

Punishment  for 42,  58 

Destruction  of  property : 

Punishment  for , 89 

Redress   for 105 

Detached  enlisted  men: 

Marine  Corps,  when  subject  to  military  law 2c 

Detached  officers: 

Marine  Corps,  when  subject  to  military  law 2c 

Discharge : 

Before  expiration  of  term 108 

Officers 118 

Remissions  of  suspended  sentence  by  honorable 52 

Soldiers' 108 

Disciplinary  punishment : 

Appeal  from 104 

Imposition  by  commanding  officer 104 

Dismissal : 
Cadets- 
Breaking  arrest  or  escaping  confinement 69 

Confirmation  by  President 48c 

Officers — 

Breaking  arrest  or  escaping  confinement 69 

Conduct  unbecoming 95 

545 


APPENDIX  1. 

Dismissal — Continued 

Officers — Continued  Art 

Confirmation  by  President 48b 

Cowardice 44 

Disrespect  toward  President  or  other  officials 62 

Drunk  on  duty 85 

False  returns 57 

Fighting  or  promoting  a  duel 91 

Fraud 44 

How  effected 118 

Making  false  muster 56 

Making  unlawful  enlistment 55 

Personal  interest  in  sale  of  provisions 87 

Kefusal  to  deliver  offenders  to  civil  authorities 74 

Refusal  to  have  reparation  of  wrongs  made 89 

Suspension  of  sentence 51 

Disobedience,  command  of  superior  officer,  punishment  for 64 

Disorders : 

Prejudicial  to  good  order  and  military  discipline 96 

Who  may  stop 68 

Disrespect : 

Toward  President  or  other  officials 62 

Toward    superior   officer (53 

Double  jeopardy,  limitation  as  to  number  of  trials 40 

Drafted  men,  subject  to  military  law 2a 

Drunkenness : 

Officer  drunk  on  duty 85 

Sentinel  drunk  on  post 86 

Dueling,  fighting  or  promoting 91 

Duty,  officer  found  drunk  on 85 

BL 

Effects  of  deceased  persons,  disposition  of 112 

Embezzlement : 

Military  property 94 

Punishment  for .     93 

Enemy,  relieving,  corresponding  with  or  aiding 81 

Enlisted  men: 

Definition  of  "soldier" lb 

Marine  Corps.     See  Marine  Corps. 

Oath  of  enlistment 109 

Separation  from  the  service 108 

Time  lost  to  be  made  good 107 

Enlistment : 

Certain  articles  of  war  to  be  read  on 110 

Fraudulent — 

Misrepresentation   or   concealment   of  qualifications 54 

Reenlistment  before  regularly   discharged 28 

546 


INDEX  TO  ARTICLES  OF  WAB. 

Enlistment — Continued  Art. 

Oath  of 109 

Time  lost  to  be  made  good 107 

Unlawful,  making  of  punishable 55 

Equipment,  wasting  or  unlawfully  disposing  of 84 

Escape : 

From  confinement,  punishment . 69 

Suffering  prisoner  to  escape 73 

Evidence : 

Depositions,  before  whom  taken 26 

Depositions,   when   admissible 25 

Records  of  courts  of  inquiry 27 

Execution  of  sentences: 

In  disciplinary  barracks 53 

Order  withheld 50* 

F. 

False  muster,  punishment  for 56 

False  returns,  punishment  for '  57 

False  writings,  in  connection  with  claims 94 

Felony,  assault  with  intent  to  commit 93 

Field  clerks: 
Army — 

Not  triable  by   summary  courts-martial 14 

Power  to  stop  quarrels,  frays,  disorders 68 

Subject  to  military  law 2a 

Quartermaster  Corps — 

Not  triable  by  summary  courts-martial 14 

Power  to  stop  quarrels,  frays,  disorders 68 

Subject  to  military  law 2a 

Findings : 

Irregularities,  effect  on *    37 

Method  of  voting  on 31 

Reconsideration  of 40 

Flogging  prohibited 41 

Forgery : 

In  connection  with  claims 94 

Punishment  for 93 

Fraud : 

Accessory   penalty 44 

Against  Government,  or  officers  thereof 94 

Fraudulent  enlistment,  by  misrepresentation  or  concealment  of 

qualifications    . 54 

Frays,  who  may  quell 68 


547 


APPENDIX  1. 

G. 

Art 

General  officers,  confirmation  of  sentence  of 48a 

Gentleman,  conduct  unbecoming  an  officer  and 95 

Gestures,  reproachful  or  provoking 90 

Good  order : 

Conduct  prejudicial  to 9G 

Maintenance  of 89 

H. 

Horses,  Injuring  or  losing 84 

Housebreaking,  punishment  for 93 

L 

Inquests,  by  summary  courts-martial 113 

Insubordination  toward  noncommissioned  officers,  punishment 65 

Intent  to  commit  a  felony 93 

Interpreters : 

Appointment  of 115 

Courts  of  inquiry 101 

Oath  administered  to 19 

Intimidation  of  persons  bringing  in  provisions 88 

Investigation : 

Charges   70 

Death^by  summary  courts-martial 113 

Delay  in,  punishment 70 

Injuries  to  property 105 

Irregularities,  effect  on  courts-martial  proceedings! 37 

J. 

Judge  Advocate : 

Oaths  administered  by 114 

Power  to  act  as  notary  public  in  foreign  places 114 

Staff,  charges  referred  to,  before  trial 70 

Staff,  restrictions  on  officer  who  may  act  as 11 

Judge  Advocate  General : 

Board  of  review  constituted  by 50J 

Branch  offices  established  by 50$ 

Review  of  records  of  trial 46 

Judge  Advocate  General's  Department : 

Board  of  review  in 50$ 

Officer  detailed  to  general  courts-martial 8 

Judge  Advocates.     See  Acting  Judge  Advocates,  Assistant  Judge 
Advocates,  Trial  Judge  Advocates. 


548 


INDEX  TO  ARTICLES  OF  WAR. 

I* 

Larceny:  Art. 

Military  property 94 

Punishment  for 93 

Law  member: 

Appointment 8 

Rulings 81 

Life  imprisonment: 

Murder 92 

Rape 92 

Limitations : 

Maximum  limits  of  punishment 45 

Upon  prosecutions,  as  to  number 40 

Upon  prosecutions,  as  to  time 39 

M. 

Manslaughter,  punishment  for 93 

Marine  Corps :- 

Enlisted  men,  subject  to  military  law  when  detached 2c 

Officers,  subject  to  military  law  when  detached 2c 

Mayhem,  punishment  for 93 

Military  commissions: 

Court  of  inquiry  records  admissible  before 27 

Jurisdiction,  concurrent  with  courts-martial 15 

Military  instruction,  persons  in  training  subject  to  military  law_  2a 

Military  law.    See  Articles  of  War. 

Military  property: 

Loss,  damage,  or  wrongful  disposition  of 83 

Purchasing  or  receiA7ing  in  pledge 94 

Waste  or  unlawful  disposition  of,  issued  to  soldiers 84 

Military  tribunals: 

Contempts  punished  by 32 

Jurisdiction  concurrent  with  courts-martial 15 

Militia,  rank  and  precedence  among  regulars,  volunteers  and —  119 

Misappropriation  of  military  property 94 

Misbehavior : 

Before  the  enemy,  inducing 75 

Before  the  enemy,  punishment 75 

Sentinel 86 

Misrepresentation,  fraudulent  enlistment 54 

Mitigation  of  sentences 50 

Money,  taking  of,  on  muster 56 

Murder : 

Punishment  for 92 

Trial  by  courts-martial 92 

Muster,  false 56 


549 


APPENDIX  1. 

Muster  In:  Art 

Certain  articles  of  war  to  be  read  on 110 

Unlawful 55 

Mutiny : 

Failure  to  suppress,  punishment 67 

Punishment  for 42,  66 

N. 

Navy,  articles  of  war  not  applicable  to ;  exception 2 

Neglect  of  duty,  prejudicial  to  good  order  and  discipline 96 

Noncommissioned  officers : 

Insubordinate  conduct  toward,  punishment 65 

Power  to  stop  quarrels,  frays,  disorders 68 

Notary  public,  powers  of,  when  granted  to  Army  officers 114 

o. 

Oaths: 

Administration  of,  in  eourts-inartia! 19 

Authority  to  administer 114 

False,  in  connection  with  claims 94 

Members  and  recorders  of  courts  of  inquiry 100 

Of  enlistment 109 

Offenders,  delivery  of,  to  civil  authorities 74 

Offenses : 

Minor,  confinement  for 69 

Minor,  disciplinary  punishment  for 104 

Not    capital 96 

Officers : 

Arrest  of,  who  may  order 68 

Assaulting  or  willfully  disobeying  superior (54 

Conduct   unbecoming 95 

Definition  of  term la 

Dismissal.    See  Dismissal. 

Disrespect  toward  Federal  or  State 62 

Disrespect   toward   superior 63 

Drunk  on  duty 85 

General,  sentences  respecting,  to  be  confirmed  by  President  48a 

How   triable 16 

Marine  Corps,  when  members  subject  to  articles  of  war 2c 

Separation  from  the  service 118 

Subject  to  military  law 

Trial   by   inferiors 16 

Opinions  by  courts  of  inquiry 102 


550 


INDEX  TO  ARTICLES  OF  WAR, 

P. 

Art, 

Parole,    divulging 77 

Pay: 

Forfeiture — • 

Special  courts-martial,  power  of 13 

Summary  courts-martial,  power  of , 14 

Stoppage  for  damage  to  property 105 

Penitentiary : 

Confinement  in,  when  lawful 42 

Officer  confined  in,  dropped  from  rolls 118 

Power  to  mitigate  or  remit  sentence  does  not  extend  to 50 

Perjury,  punishment  for 93 

Pillage,  quitting  post  to 75 

Pleading,  error  in,  effect  on  proceedings 37 

Pleas,  refusal  or  failure  to  plead 21 

Pledge,  receiving  military  property  in 94 

Plunder,  quitting  post  to 75 

President  of  the  United  States : 

Action   on   rehearing 50$ 

Confirmation  of  sentences,  when  required 48 

Dismissal  or  discharge  of  officer  by 118 

Disrespect   toward,   punishment   for 62 

General  courts-martial  appointed  by 8 

Persons  excepted  from   summary  courts-martial   jurisdic- 
tion by 14 

Prescribes  rules  for  courts-martial  procedure 38 

Prisoners : 

Refusal  to  receive  or  keep 71 

Releasing,  without  proper  authority 73 

Report  on,  by  commander  of  guard 72 

Property : 

Abandoned,  dealing  in 80 

Captured,  dealing  in 80 

Captured,  failure  to  secure 79 

Captured,   misappropriation   of 79 

Captured,   securing  for  public   service 79 

Injuries  to,  redress  of 105 

Willful  destruction  of,  by  persons  in  military  service 89 

Provisions : 

Intimidation  of  persons  bringing  in 88 

Sale  of,  officer's  personal  interest  in 87 

Provost  courts,   jurisdiction  concurrent   with   courts-martial 15 

Provost  marshal,  refusal  of,  to  receive  or  keep  prisoners 71 

Punishment : 

Cowardice - 44 

Cruel  and  unusual,  prohibited 41 

Disciplinary  powers  of  commanding  officer 104 


APPENDIX  1. 

Punishment — Continued.  Art. 

Fraud 44 

Maximum  limits 45 

Places  of  confinement,  when  lawful 42 

Special  courts-martial,  power  of 13 

Summary  courts-martial,  power  of 14 

Q,. 

Quarrels,  who  may  stop 68 

Quartermaster  Corps,  field  clerks: 

Not  triable  by  summary  courts-martial 14 

Power  to  stop  quarrels,  frays,  disorders 68 

Subject  to  military  law 2a 

R. 

Rank,  precedence  among  regulars,  militia,  and  volunteers 119 

Rape: 

Punishment  for 92 

Trial  by  courts-martial 92 

Receipt : 

Delivery  of  less  than  amount  specified 94 

Making  or  delivering,  with  fraudulent  intent 94 

Reconsideration  of  courts-martial  records 40 

Records  : 

Courts-martial,  reconsideration 40 

Courts  of  inquiry . 103 

General  courts-martial,  keeping  and  authentication  of 33 

General  courts-martial,  disposition  of 35 

General  courts-martial,  examination  of 50i 

Of  trial,  copy  of,  for  accused 111 

Special  courts-martial,  keeping  and  authentication  of 34 

Special  courts-martial,  disposition  of 36 

Summary  courts-martial,  keeping  and  authentication  of 34 

Summary  courts-martial,  disposition  of 86 

Recorder : 

For  court  of  inquiry 98 

For  courts  of  inquiry,  oath  of 100 

Redress : 

For  wrong  to  person 121 

Of  wrongs,  by  commanding  officer 89 

Regular  Army: 

Inmates  of  Soldiers'  Home,  Washington,  D.  C.,  subject  to 

military  law 2b 

Rank  and  precedence  among  volunteers,  militia,  and  mem- 
bers of 119 

Soldiers  subject  to  military  law 2a 

Rehearing : 

Procedure 50i 

Who  may  authorize 50J 

552 


INDEX  TO  ARTICLES  OF  WAR. 

Art. 

Release  of  prisoners  without  proper  authority 73 

Relieving  enemy,  punishment 81 

Remission : 

Sentences 50 

Sentences,  in  disciplinary  barracks 53 

Unexecuted  sentence . 52 

Reporters : 

Appointment  of 115 

Courts  of  inquiry 101 

Oath  administered  to .     19 

Retainers,  camp,  subject  to  military  law 3d 

Returns : 

False,  punishment  for 57 

Omission  to  render 57 

Reviewing  authority,  action  by,  necessary 40 

Revision,  reconsideration  of  finding  or  sentence 40 

Riot,  punishment  for 89 

Robbery,  punishment  for 1 93 

s. 

Safeguard,  forcing 78 

Safety  of  command,  endangering 75 

Sales : 

Military    property 94 

Provisions,  officer's  personal  interest  in 87 

Unlawful  sale  of  military  property 84 

Sedition : 

Failure  to  suppress,  punishment 67 

Punishment  for 66 

Self-incrimination,  compulsory,  prohibited 24 

Sentences : 

Approval  by  convening  authority 46 

Approval  or  disapproval  by  appointing  authority 47b 

Confirmation,  powers  incident  to  power  of 49 

Courts-martial,  effect  of  civil  conviction  on 74 

Execution  of,  in  disciplinary  barracks 53 

Irregularities,  effect  on 87 

Mitigation  of,  in  whole  or  part 50 

Powers  incident  to  power  tp  approve 47 

Reconsideration  of 40 

Remission  of,  in  disciplinary  barracks 53 

Remission  of,  in  whole  or  part 50 

Suspension  of,  until  pleasure  of  President  is  known 51 

Suspension  of,  who  may  order 52 

Sentinel: 

Drunk  on  post 86 

Sleeping  on  post 86 


553 


APPEBTDIX  L 

Separation  from  service.     See  Discharge;  Dismissal.  Art 

Sessions,  closed 30 

Signatures,  forging,  in  connection  with  claims 94 

Sleeping  on  post,  by  sentinel ' 86 

Sodomy,  punishment  for 93 

Soldiers.     See  Enlisted  men. 

Soldiers'  Home,  Regular  Army,  Washington,  D.  C.,  members  sub- 
ject to  military  law 3b 

Specifications,  who  may  sign 70 

Speeches,  reproachful  or  provoking 90 

Spies : 

Lurking  about  fortifications 82 

Punishment  for 82 

Squadron  included  in  "  battalion  " 1 

Staff  judge  advocate: 

Review  of  records  of  trial 46 

Statute  of  limitations 39 

Stoppage  of  pay.    See  Pay. 

Subordinates : 

Commander  compelled  to  surrender  by 76 

Insubordinate  conduct  toward  noncommissioned  officer 1_  65 

Superior  officer: 

Assaulting,  punishment  for 64 

Disrespect  toward,  punishment  for 63 

Willfully  disobeying,  punishment  for 64 

Surrender,  subordinates  compelling  commander  to 76 

Suspension : 
Cadets — 

Confirmation  by  President 48c 

Sentence,     See  Sentences. 

T.   * 

Tattooing  as  punishment  prohibited 41 

Testimony : 

Compulsory  self-incrimination  prohibited 24 

Depositions.    See  Depositions. 
Witnesses.    See  Witnesses. 

Threats  against  warrant  or  noncommissioned  officers 65 

Trial: 

Copy  of  record  of,  for  accused , 111 

Delay  in  bringing,  punishment 70 

Second  for  same  offense 40 

Speedy  trial  required 70 

Time  for 70 

Trial  judge  advocates: 

Appointment  of 11 

Assistant,  powers  and  duties  of 116 


554 


INDEX  TO  ARTICLES  OF  WAR. 

Trial  judge  advocates — Continued.  Art. 

Assistant,  qualifications 116 

Duties 17 

Oaths  administered  by 114 

Powers  of  notary  public  in  foreign  places 114 

Withdrawal  at  closed  session 30 

IT. 

United  States  Disciplinary  Barracks: 

Confinement  in 42 

Execution  of  sentence  when  confined  in 53 

Power  to  mitigate  or  remit  sentence  does  not  extend  to 50 

Remission  of  sentence  when  confined  in 53 

United  States  Military  Academy : 

Cadets  breaking  arrest  or  escaping  confinement 69 

Cadets'   dismissal  or  suspension 48c 

Cadets  not  triable  by  summary  courts-martial 14 

Cadets  subject  to  military  law 2b 

Dismissal  of  cadets 69 

General  courts-martial  appointed  by  Superintendent 8, 12 

Verdict: 

Announcement  by  court 29 

Volunteers : 

Rank  and  precedence  among  regulars,  militia,  and 119 

Subject  to  military  law 2a 

Voting : 

Method  of 31 

On  convictions  and  sentences 43 

w. 

Warrant  officers : 

Insubordinate  conduct  toward 65 

Not  triable  by  summary  courts-martial 14 

Power  to  stop  quarrels,  frays,  disorders 68 

Subject  to  military  law 2a 

Waste : 

Military  property  issued  to  soldiers 84 

Property 89 

Weapon,  assault  with  dangerous 93 

Witnesses : 

Compulsory  self-incriminatiou  prohibited 24 

Courts  of  inquiry 101 

Inquests 113 

Oaths  administered  to . 19 

Process  to  obtain 22 

Refusal  to  appear  or  testify 23 

Wrongs : 

Redress  of 89 

Redress,  refusal  of,  procedure  on 121 

555 


APPENDIX  2. 

SYSTEM  OF  COURTS-MARTIAL  FOR  NATIONAL 
GUARD  NOT  IN  THE  SERVICE  OF  THE  UNITED 
STATES. 

SEC.  102.  Except  in  organizations  in  the  service  of  the  United 
States,  courts-martial  in  the  National  Guard  shall  be  of  three  kinds, 
namely,  general  courts-martial,  special  courts-martial,  and  summary 
courts-martial.  They  shall  be  constituted  like,  and  have  cognizance 
of  the  same  subjects,  and  possess  like  powers,  except  as  to  punish- 
ments, as  similar  courts  provided  for  by  the  laws  and  regulations 
governing  the  Army  of  the  United  States,  and  the  proceedings  of 
courts-martial  of  the  National  Guard  shall  follow  the  forms  and 
modes  of  procedure  prescribed  for  said  similar  courts. 

SEC.  103.  General  courts-martial  of  the  National  Guard  not  in  the 
service  of  the  United  States  may  be  convened  by  orders  of  the  Presi- 
dent, or  of  the  governors  of  the  respective  States  and  Territories,  or 
by  the  commanding  general  of  the  National  Guard  of  the  District  of 
Columbia,  and  such  courts  shall  have  the  power  to  impose  fines  not 
exceeding  $200 ;  to  sentence  to  forfeiture  of  pay  and  allowances ;  to  a 
reprimand;  to  dismissal  or  dishonorable  discharge  from  the  service; 
to  reduction  of  noncommissioned  officers  to  the  ranks ;  or  any  two  or 
more  of  such  punishments  may  be  combined  in  the  sentences  imposed 
by  such  courts. 

SEC.  104.  In  the  National  Guard  not  in  the  service  of  the  United 
States  the  commanding  officer  of  each  garrison,  fort,  post,  camp,  or 
other  place,  brigade,  regiment,  detached  battalion,  or  other  detached 
command,  may  appoint  special  courts-martial  for  his  command;  but 
such  special  courts-martial  may  in  any  case  be  appointed  by  superior 
authority  when  by  the  latter  deemed  desirable.  Special  courts-mar- 
tial shall  have  power  to  try  any  person  subject  to  military  law,  ex- 
cept a  commissioned  officer,  for  any  crime  or  offense  made  punish- 
able by  the  military  laws  of  the  United  States,  and  such  special 
courts-martial  shall  have  the  same  powers  of  punishment  as  do  gen- 
eral courts-martial,  except  that  fines  imposed  by  such  courts  shall 
not  exceed  $100. 

SEC.  105.  In  the  National  Guard,  not  in  the  service  of  the  United 
States,  the  commanding  officer  of  each  garrison,  fort,  post,  or  other 
place,  regiment  or  corps,  detached  battalion,  company,  or  other  de- 
tachment of  the  National  Guard  may  appoint  for  such  place  or  com- 
mand a  summary  court  to  consist  of  one  officer,  who  shall  have  power 
to  administer  oaths  and  to  try  the  enlisted  men  of  such  place  or  com- 
mand for  breaches  of  discipline  and  violations  of  laws  governing  such 


556 


COURTS-MARTIAL  FOR  NATIONAL  GUARD. 

organizations ;  and  said  court,  when  satisfied  of  the  guilt  of  such  sol- 
dier, may  impose  fines  not  exceeding  $25  for  any  single  offense ;  may 
sentence  noncommissioned  officers  to  reduction  to  the  ranks ;  may  sen- 
tence to  forfeiture  of  pay  and  allowances.  The  proceedings  of  such 
court  shall  be  informal,  and  the  minutes  thereof  shall  be  the  same  as 
prescribed  for  summary  courts  of  the  Army  of  the  United  States. 

SEC.  106.  All  courts-martial  of  the  National  Guard,  not  in  the  serv- 
ice of  the  United  States,  including  summary  courts,  shall  have  power 
to  sentence  to  confinement  in  lieu  of  fines  authorized  to  be  imposed: 
Provided,  That  such  sentences  of  confinement  shall  not  exceed  one 
day  for  each  dollar  of  fine  authorized. 

SEC.  107.  No  sentence  of  dismissal  from  the  service  or  dishonorable 
discharge,  imposed  by  a  National  Guard  court-martial,  not  in  the 
service  of  the  United  States,  shall  be  executed  until  approved  by  the 
governor  of  the  State  or  Territory  concerned,  or  by  the  commanding 
general  of  the  National  Guard  of  the  District  of  Columbia. 

SEC.  108.  In  the  National  Guard,  not  in  the  service  of  the  United 
States,  presidents  of  courts-martial  and  summary  court  officers  shall 
have  power  to  issue  warrants  to  arrest  accused  persons  and  to  bring 
them  before  the  court  for  trial  whenever  such  persons  shall  have  dis- 
obeyed an  order  in  writing  from  the  convening  authority  to  appear 
before  such  court,  a  copy  of  the  charge  or  charges  having  been  de- 
livered to  the  accused  with  such  order,  and  to  issue  subpoenas  and 
subpoenas  duces  tecum  and  to  enforce  by  attachment  attendance  of 
witnesses  and  the  production  of  books  and  papers,  and  to  sentence 
for  a  refusal  to  be  sworn  or  to  answer  as  provided  in  actions  before 
civil  courts. 

All  processes  and  sentences  of  said  courts  shall  be  executed  by 
such  civil  officers  as  may  be  prescribed  by  the  laws  of  the  several  States 
and  Territories,  and  in  any  State  where  no  provision  shall  have  been 
made  for  such  action,  and  in  the  Territories  and  the  District  of  Co- 
lumbia, such  processes  and  sentences  shall  be  executed  by  a  United 
States  marshal  or  his  duly  appointed  deputy,  and  it  shall  be  the  duty 
of  any  United  States  marshal  to  execute  all  such  processes  and  sen- 
tences and  make  return  thereof  to  the  officer  issuing  or  imposing  the 
same,  (Act  of  June  3, 1916,  39  Stat,  208,  209.) 

21358°— 20 36 


557 


APPENDIX  3. 

FORM  OF  ORDER  APPOINTING  A 
COURT-MARTIAL. 


GENERAL 


Headquarters 


(Corps  Area)   (Division)   (Department). 


(Place)  - 
SPECIAL  ORDERS,  1 

No.  j 

A  general  court-martial  is  appointed 
at ,  on  — 


(Date) 


19— 


to   meet  at 
19 — ,  or  as  soon  thereafter  as  practicable, 


for  the  trial  of  such  persons  as  may  be  properly  brought  before  it, 


Col. 


DETAIL  FOR  THE  COURT. 

5th  Cavalry. 

— ,  1st  Infantry. 
,  3d  Field  Artillery. 


J.  A.  G.  D.,  law  member. 
3d  Field  Artillery. 
4th  Infantry. 
5th  Cavalry. 
1st  Infantry. 
3d  Field  Artillery. 
5th  Cavalry,  trial  judge  advocate. 

First  Lieut. ,  3d  Field  Artillery,  assistant  trial  judge  advocate. 

Capt.  ,  4th  Infantry,  defense  counsel. 

^  First  Lieut.  ,  4th  Infantry,  assistant  defense  counsel. 

(In  case  travel  is  necessary,  the  following  sentence  will  be  added:) 
The  travel  directed  in  compliance  with  this  order  is  necessary  In 
the  military  service. 

By  command  of  Maj.  Gen. . 

(name), 


Official : 


Adjutant 


(rank)   (General  Staff), 


Chief  of  Staff. 


NOTE. — A  succession  of  orders  modifying  an  order  appointing  a 
court-martial  is  liable  to  result  in  serious  errors.  When  practicable 
it  should  be  avoided  by  appointing  a  new  court 


558 


APPENDIX  4. 

FORM  OF  ORDER  APPOINTING  A  SPECIAL  COURT- 

MARTIAL. 


f  SPECIAL  OBDEES,  Headquarters 


No.  -  .  (Place)  -  (Date)  -  19— 

A  special  court-martial  is  appointed  to  meet  at  -  ,  -  at 
--  ,  -  ,  19  -  ,  or  as  soon  thereafter  as  practicable,  for 


the  trial  of  such  persons  as  may  be  properly  brought  before  it. 

DETAIL  FOB  THE  COUBT. 

Maj.  -  ,  1st  Cavalry. 

Capt.  -  ,  3d  Cavalry. 

Capt.  -  ,  4th  Coast  Artillery  Company. 

First  Lieut.  -  ,  3d  Cavalry. 

First  Lieut.  -  ,  1st  Infantry. 

Capt.  -  ,  4th  Coast  Artillery  Company,  trial  judge  advocate. 

Capt.  -  ,  3d  Cavalry,  defense  counsel. 

(In  case  the  appointing  authority  desires  that  the  testimony  be  re- 
duced to  writing,  the  following  sentence  will  be  added:) 

The  testimony  will  be  reduced  to  writing,  and  the  president  is 
authorized  to  employ  a  reporter. 

By  order  of  Colonel  -  : 


Adjutant. 


659 


Form  No.  594,  A.  G.  O. 
December  8, 1920. 


APPENDIX  5. 
CHARGE  SHEET. 

(See  Instructions  on  page  4.) 
No. 


(In  summary  court  record.) 


(Place.) 


(Date.) 


(Surname  of  accused.          (Christian  name.)          (Army  serial  No.)       (Grade,) 

(Company  and  regiment,  or  corps,  or  department.) 

Date  of  current  enlistment, ,  19 — ;  age  at  enlist- 
ment,   years  months. 

Term  of  current  enlistment  years. 

Rate  of  pay,  $ —  —    Class  A  allotment, 
B  allotment,  $ per  month. 

Allotment  for  insurance  premium,  $ per  month. 

Prior  service, 


per  month.     Class 


(Give  dates,  with  character  given  on  each  discharge.) 
Witnesses,  both  for  and  against  the  accused,  so  far  as  known,  are 
as  follows  (see  Instruction  4)  ; 


Against  the  accused— 


To  be  found  at — 


For  the  accused — 


To  be  found  at — • 


Memorandum  of  documentary  evidence  bearing  on  the  case  (see  In- 
structions 4  and  9) : 


List  of  documents. 

Original 
ap- 
pended. 

Copy  ap- 
pended. 

If  original  is  not  appended,  state  place 
where  it  may  be  found. 

, 

Is  accused  now  in  arrest  ?- 
If  so,  date  of  arrest 


or  in  confinement  ?- 


-,  19 — ,  or  confinement 


If  so,  place  where  accused  is  now  in  arrest  or  confinement 


-,19- 


560 


CHARGE  SHEET. 

CHARGE  :  Violation  of  the Article  of  War. 

Specification: 


(Signature  of  accuser) 


( Grade  and  organization  and  arm,  or 
staff  corps,  or  department.) 

(Additional  sheets;  if  necessary,  for  charges  and  specifications  will 
be  attached  here.  Ordinary  8  ly  12  inch  paper  loill  be  used  for  ad- 
ditional sheets.) 

AFFIDAVIT. 

Before  me,  the  undersigned,  authorized  by  law  to  administer 
oaths  in  cases  of  this  character,  personally  appeared  the  above- 
named  accuser  this  day  of ,  19 — ,  and  made 

oath  that  he  is  a  person  subject  to  military  law  and  that  he  per- 
sonally signed  the  foregoing  charges  and  specifications,  and  further 
that  he  *  has  personal  knowledge  of  the  matters  set  forth  in 

specifications" ;  and  *  has 

(Indicate  by  specification  and  charge  numbers.) 

investigated  the  matters  set  forth  in  specifications  

(Indicate 

-,  and  that  the  same  are  true 


by  specification  and  charge  numbers.) 
in  fact,  to  the  best  of  his  knowledge  and  belief. 
(Name) 


(Rank  and  organization.) 


(Official  character,  as  summary  court,  notary  public,  etc.) 

NOTES. —  (1)  At  (*)  strike  out  words  not  applicable. 

(2)  If  the  accuser  has  personal  knowledge  of  the  facts  stated  in  one  or  more 
specifications  or  parts  thereof,  and  his  knowledge  as  to  other  specifications  or 
parts  thereof  is  derived  from  investigation  of  the  facts,  the  form  of  the  oath 
will  be  varied  accordingly.     In  no  case  will  he  be  permitted  to  state  alter- 
natively,   as   to  any   particular    charge   or   specification,    that   he   either    has 
personal  knowledge  or  has  investigated.     (See  note  to  par.  75,  M.  C.  M.) 

(3)  If  the  oath  is  administered  by  a  civil  officer  having  a  seal,  his  official 
seal  should  be  affixed. 

IST  IND. 
(See  Instruction  6.) 

Headquarters , , ,  19 — . 

(Place.)  (Date.) 


Referred  for  trial  to 


(Rank,  name,  and  organization.      Summary  court,  trial 

court-martial   ap- 


Judge  advocate. )  ( Summary,  special,  or  general. ) 

pointed  by  paragraph Special  Orders,  No.  • 

Headquarters ,  19 — . 

of 


(Command  or  order.)  (Rank  and  name  of  commanding  officer.) 

,  Adjutant. 


561 


APPENDIX  5. 

I  have  semed  copies  hereof  and  of  accompanying  papers,  in  accord- 
ance with  the  requirements  of  paragraph  77&,  Manual  for  Courts- 
Martial,  on  the  above-named  accused,  this day  of  , 

19— 

{Name) ,  Trial  Judge  Advocate. 

(Rank  and  organization.) 

Pleas : 

Findings : 

Sentence : 

Days  in  arrest  (or  confiement),  —        ;  maximum  punish- 
ment,   

Remarks: 


NOTE. — The  foregoing  blank  spaces  will  be  filled  Jn.  by  summary  courts. 
In  other  cases  they  will  not  be  filled  In  by  trial  Judge  advocates  or  otbera 
at  the  trial,  but  will  be  reserved  for  use  for  record  purposes  at  the  head- 
quarters of  the  officer  appointing  the  special  or  general  court-martial. 

Entered  oo  pay  card  (forfeiture  only).     (See  Instruction  8) 

(Initials  of  adjutant.) 

Entered    on    service    record    in    cases    of    conviction     (see    Instruc- 
tion 8) 


(Initials  of  company  or  detachment  commander.) 
DESTRUCTIONS. 

L  Before  preparing  charges  on  tliis  form  the  provisions  of  the 
seventieth  article  of  war  and  of  paragraph  75,  Manual  for  Courts- 
Martial,  and  the  note  thereunder,  together  with  paragraphs  62,  <33,  64, 
65,  66,  and  67,  Manual  for  Courts-Martial,  and  of  the  particular  article 
or  articles  of  war  alleged  to  have  been  violated,  and  the  paragraphs  of 
the  Manual  for  Courts-Martial  relating  .thereto,  will  be  carefully  con- 
sidered. 

2.  Charges  for  trial  by  courts-mnrtial  may  be  preferred  by  any 
person  subject  to  military  law.  All  charges  and  specifications  must  be 
signed  by  a  person  subject  to  military  law,  and  under  oath  either  that 
he  has  personal  knowledge  of  or  has  investigated  the  matters  set  forth 
therein,  and  that  the  same  are  true  in  fact  to  the  best  of  his  knowledge 
and  belief.  (A.  W.  70.) 

Charges  will  be  preferred  only  when  the  person  preferring  them 
either  has  personal  knowledge  of  or  has  Investigated  the  matters  set 
forth  therein,  and  from  such  knowledge  or  investigation  is  of  the 
opinion  that  there  is  reasonable  ground  for  believing  that  the  offense 
has  been  committed,  that  the  accused  Is  guilty  of  the  offense,  and  that 
the  offense  can  not  be  properly  or  adequately  dealt  with  in  any  other 
manner.  (Par.  75,  M.  C.  M.) 

562 


CHARGE  SHEET. 

3.  All  charges  for  trial  by  courts-martial  will  be  is  triplicate  and 
may  be  prepared  by  carbon  process.    This  charge  sheet  form  will  be 
used  for  each  of  the  three  copies,  and  all  copies  will  be  signed  by  the 
accuser  and  the  officer  administering  the  oath.     Should  the  space  on 
this  form  be  insufficient  to  accommodate  ail  the  charges  and  specifica- 
tions proposed,  such  additional  sheets  of  ordinary  paper  will  be  used 
for  that  purpose  as  may  be  required.     The  charges  and  specifications 
will  be  signed  as  indicated  on  this  prescribed  form  and  the  affidavit 
thereto,  in  substantially  the  form  hereon  prescribed,  will  be  sworn  to 
before  any  officer,  civil  or  military,  authorized  to  administer  oaths  in 
cases  of  this  character  (see  as  to  the  competency  of  military  officers 
to  administer  oaths,  par.  138,  M.  C.  M.),  and  will  be  forwarded  to  the 
commanding   officer    immediately    exercising   summary   court-martial 
jurisdiction   over    the    command    to    which    the    accused    belongs    or 
pertains, 

4.  All  known  witnesses,  both  for  and  against  the  accused,  will  be 
listed  in  the  prescribed  place  on  this  charge  sheet,  mentioning  where 
they  may  be  found;  and  all  documents  bearing  upon  the  case  which 
may  be  obtainable  will  be  listed  in  the  prescribed  place  under  "  Mem- 
orandum   of    documentary    evidence    bearing    on    the    case "    above. 
Wherever  available,  original  documents  which  may  be  useful  as  evi- 
dence will  be  appended  and  securely  fastened  hereto.    If  the  originals 
are  not  available,  copies  will,  if  available,  be  so  appended.     In  any 
case  where  the  originals  are  not  so  appended  (whether  or  not  copies 
are  appended),  the  place  where  the  originals  may  be  found  will  be 
noted  in  the  appropriate  place  under  "  Memorandum  of  documentary 
evidence  bearing  on  the  case  "  above.    . 

5.  The  affidavit  to  the  charges  must  state  positively  either  that 
(1)  the  affiant  preferring  the  charges  has  personal  knowledge  of  the 
matters  set  forth  therein,  or  else,  (2)  that  he  has  investigated  them 
and  has  thus  satisfied  himself  of  the  facts.     It  must  clearly  appear 
upon  which  ground  he  places  his  statement  of  the  truth  of  the  facts 
alleged  in  the  charges  and  specifications.     He  is  not  to  be  permitted 
to  say  alternatively,  as  to  any  particular  charge  or  specification,  that 
he  either  has  personal  knowledge  or  has  investigated.     Such  an  in- 
definite statement  is  wholly  insufficient  to  satisfy  the  requirements 
of  the  seventieth  article  of  war,  and  will  not  be  accepted. 

He  may,  however,  base  some  of  the  allegations  in  a  specification, 
or  some  of  the  specifications,  on  his  personal  knowledge,  and  others 
upon  his  investigation  of  the  facts.  In  such  cases  he  will,  in  the  affi- 
davit, state  which  are  based  upon  personal  knowledge  and  which  upon 
investigation.  ( See  note  to  par.  75,  M.  C.  M. ) 

6.  If  trial  is  ordered,  the  order  of  reference  for  trial  will  be  in- 
dorsed on  one  original  counterpart  hereof,  as  "  1st  Ind.,"  in  the  form 
hereon  prescribed. 

The  counterpart  on  which  such  order  is  indorsed  will  be  the  one 
retained  by  the  trial  judge  advocate  during  trial  and  returned  by  him 


563 


APPENDIX  5. 

with  the  record  of  trial  to  the  convening  authority.     (See  par.  796, 
M.  C.  M.) 

7.  The  trial  judge  advocate  will  also  enter  on  this  same  counter- 
part, in  substantially  the  form  hereon  prescribed,  his  certificate  of 
service  of  the  charges  and  accompanying  documents  on  the  accused, 
as  required  by  paragraph  77&,  M.  C.  M. 

8.  The  initials  of  the  adjutant  indicating  entry  on  pay  card  when 
forfeiture  is  awarded,  and  the  initials  of  the  company  or  detachment 
commander  indicating  entry  on  service  record  in  case  of  conviction, 
will  be  placed  on  the  original  charge  sheet  of  summary  courts-martial, 
completed  as  the  record  of  trial. 

9.  Bulky  reports  or  official  documents  will  not  ordinarily  be  ap- 
pended or  copied,  but  listed,  and  the  place  where  they  may  be  found 
stated  in  the  column  so  headed,  on  page  I.1 

*  "  Page  1  "  of  A.  G.  O.  Form  594,  Is  page  560  supra. 


564 


APPENDIX  6. 
FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

INSTRUCTIONS. 

The  forms  for  charges  and  specifications  set  forth  below  constitute 
a  general  guide  for  use  in  the  drafting  of  charges  and  specifications 
under  the  several  articles  of  war,  not  only  for  offenses  specifically 
provided  for  in  the  forms  but  also  for  like  offenses  not  specifically 
mentioned  therein.  In  preparing  charges  the  following  general  rules 
should  be  observed: 

(a)  When  there  is  more  than  one  charge  the  charges  will  be  num- 
bered, using  the  Roman  numerals,  viz,  I,  II,  etc. 

(&)  When  there  is  more  than  one  specification  under  a  charge  the 
specifications  under  that  charge  will  be  numbered,  using  the  Arabic 
numerals,  viz,  1,  2,  etc. 

(c)  The  form  provided  for  the  charge  will  not  in  any  case  be  ab- 
breviated, added  to,  or  deviated  from. 

(d)  The  several  forms  provided  for  specifications  will  be  added  to 
or  deviated  from  when  circumstances  require  such  addition  or  de- 
viation. 

(e)  The  words  inclosed  in  parentheses  or  brackets,  or  both,  in  the 
forms  for  specifications  may  or  may  not  be  used,  as  circumstances 
require. 

(f)  The  blanks  inclosed  in  parentheses  in  the  forms  for  specifica- 
tions, indicate  that  a  proper  substitute  may  be  used. 

(g)  The  name  of  the  accused  as  stated  in  the  specification  should, 
except  in  a  case  in  which  the  jurisdiction  of  the  court  over  the  per- 
son is  not  dependent  upon  his  being  a  person  subject  to  military  law 
(e.  g.,  see  A.  W.  81  and  82),  be  accompanied  by  such  descriptive  lan- 
guage as  will  show  that  he  is  a  person  subject  to  military  law  and 
therefore  subject  to  the  jurisdiction  of  the  court.     Thus,  in  the  ordi- 
nary case  of  an  officer  or  soldier  in  the  service,  the  specification 
should  read  "  In  that  Captain  John  Smith,  Field  Artillery,  did,"  etc., 
or  "  In  that  Private  John  Smith,  Company  A,  7th  Infantry,  did,"  etc. 
These  forms  are  applicable  for  all  persons  in  the  military  service 
whether  members  of  the  Regular  Army  or  volunteer  forces  accepted 
or  mustered  into  the  military  service  of  the  United  States  or  members 
of  the  National  Guard  or  of  other  forces  which   may  have  been 
drafted,  called  or  ordered  into,  or  to  duty  or  for  training  in,  the 
military  service  of  the  United  States,  provided  the  accused  has  ac- 
tually answered  such  call,  draft  or  order;  if,  however,  the  accused 
has  not  obeyed  the  call,  draft,  or  order,  his  name  should  be  followed 


565 


APPENDIX  6. 

by  the  words  "lawfully  called  (drafted)  or  (ordered)  into  the 
military  service  of  the  United  States."  If  the  accused  has  not  been 
assigned  to  an  organization,  the  word  "  unassigned  "  may  be  employed. 
In  the  case  of  a  cadet,  the  specification  should  read  "  In  that  Cadet 
John  Smith,  United  States  Military  Academy,  did,"  etc.  In  the  case 
of  a  member  of  the  Marine  Corps  detached  for  service  with  the  Armies 
of  the  United  States  by  order  of  the  President,  the  words  "  detached 
for  service  with  the  Armies  of  the  United  States  by  order  of  the 
President"  should  follow 'the  other  words  of  identification  and  de- 
scription. When  the  accused  is  an  officer  or  enlisted  man  of  the 
Medical  Department  of  the  Navy,  serving  with  a  body  of  Marines 
detached  for  service  with  the  Armies  of  the  United  States  by  order 
of  the  President,  this  fact  should  be  alleged  as  follows :  "  In  that 
— ,  Medical  Department  of  the  Navy,  serving  with  a  body  of 
Marines  detached  for  service  with  the  Armies  of  the  United  States 
by  order  of  the  President,  did,"  etc.  As  to  the  persons  subjected  to 
military  jurisdiction  by  paragraph  (d)  of  Article  of  War  2,  the  words 
"  a  retainer  to  the  camp  of  United  States  troops  without  the  terri- 
torial jurisdiction  of  the  United  States,"  or  "  a  person  accompanying 
the  Armies  of  the  United  States  without  the  territorial  jurisdiction 
of  the  United  States,"  or  "  a  person  serving  with  the  Armies  of  the 
United  States  without  the  territorial  jurisdiction  of  the  United 
States,"  should  be  employed,  unless  it  be  in  time  of  war,  when  the 
words  "  a  retainer  to  the  camp  of  United  States  troops  in  the  field," 
or  "  a  person  accompanying  the  Armies  of  the  United  States  in  the 
field,"  or  "a  person  serving  with  the  Armies  of  the  United  States 
in  the  field,"  should  be  used,  according  to  the  circumstances  of  each 
case.  As  to  the  persons  designated  in  paragraph  (e)  of  Article  of 
War  2,  the  name  of  the  accused  should  be  followed  by  the  words  "  a 
person. under  sentence  adjudged  by  court-martial." 

(7i)  The  place  and  date  of  the  commission  of  the  alleged  offense 
will  ordinarily  be  stated  in  the  body  of  the  specification  and  not  in 
a  separate  line  at  the  end  thereof. 

(»)  The  words  "officer  preferring  charge,"  or  words  of  similar 
import,  will  not  be  used  in  connection  with  the  signature  of  the 
person  who  subscribes  the  charges. 

SPECIMEN  CHARGES. 

I  To  be  placed  on  charge  sheet,  Appendix  5.] 
CHAEGE  I:  Violation  of  the  54th  Article  of  War. 

Specification:  In  that  Pvt.  Richard  RoeT  Company  A,  Second  In- 
fantry, alias  Pvt.  John  Doe,  Company  F,  Twenty-ninth  Infantry,  did, 
without  a  discharge  from  said  Company  A,  Second  Infantry,  procure 
himself  to  be  enlisted  in  the  military  service  of  the  United  States  at 
Fort  Jay,  N.  Y.,  on  the  24th  day  of  July,  1917,  under  the  name  of 
John  Doe,  by  willfully  concealing  from  Capt.  William  White,  Medical 


566 


FORMS  FOR  CHARGES  A3SV  SPECIFICATIONS. 

Corps,  a  recruiting  officer,  the  fact  of  his  prior  enlistment  in  said 
Company  A,  Second  Infantry,  and  has  at  Fort  Jay,  N.  Y.,  since  said 
date,  received  allowances  under  said  enlistment 

CHARGE  II:   Violation  of  the  58th  Article  of  War. 

Specification:  In  that  Pvt.  Richard  Roe,  Company  A,  Second  In- 
fantry, alias  Pvt.  John  Doe,  Company  F,  Twenty-ninth  Infantry,  did, 
at  Fort  Jay,  N.  Y.,  on  or  about  the  6th  day  of  March,  1917,  desert  the 
service  of  the  United  States,  and  did  remain  absent  in  desertion  until 
he  was  apprehended  at  Fort  Jay,  N.  Y.,  on  or  about  July  24,  1917. 

CHARGE  III:   Violation  of  the  8€th  Article  of  War. 

Specification  1:  In  that  Pvt.  Richard  Roe,  Company  A,  Second  In- 
fantry, alias  Pvt.  John  Doe,  Company  F,  Twenty-ninth  Infantry,  did, 
at  Fort  Jay,  N.  Y.,  on  or  about  March  6,  1917,  wrongfully  strike  in  the 
face  with  his  fist  Pvt.  John  W.  Davis,  Third  Company,  Fort  Hamilton, 
then  a  sentinel  in  the  execution  of  his  duty. 

Specification  2:  In  that  Pvt.  Richard  Roe,  Company  A,  Second  In- 
fantry, alias  Pvt."  John  Doe,  Company  F,  Twenty-ninth  Infantry,  hav- 
ing at  Fort  Jay,  N.  Y.,  on  or  about  the  6th  day  of  March,  1917,  re- 
ceived a  lawful  order  to  halt  from  Pvt.  John  W.  Davis,  Third  Com- 
pany, Fort  Hamilton,  then  a  sentinel  in  the  execution  of  his  duty,  did 
willfully  disobey  the  same. 

JOHN  JONES, 

Captain,  C.  A.  C. 

FORMS. 

[See  instructions  at  the  beginning  of  this  appendix,] 
CHAKGE:   Violation  of  the  54th  Article  of  War. 

1.  Specification:  In  that  Pvt.  ,  Company  ,  In- 
fantry,   alia-s   Pvt.   ,   Company   ,   Infantry,    did, 

without  a  discharge  from  said Infantry,  procure  himself  to  be 

enlisted  in  the  military  service  of  the  United  States  at  ,  on 

the  —     —  day  of ,  19 — ,  under  the  name  of ,  (by  means 

of  willfully  misrepresenting  to ,  a  recruiting  officer  that  he  had 

never   been  enlisted   in   the  service  of  the  United   States   and)    by 

means   of  willfully   concealing   from    (said)     ( ,   a)    recruiting 

officer,    the   fact   of   his   prior  enlistment    in   said   Infantry; 

and  has,  at and  since  said  date,  received  (pay)    (allowances) 

(pay  and  allowances)  under  said  enlistment. 

2.  Specification:  In  that  -     —  did  procure  himself  to  be  enlisted 

in  the  military  service  of  the  United  States,  at ,  on  the 

day  of ,  19 — ,  [by  means  of  willfully  misrepresenting  to , 

a    recruiting  officer,   that   he  had  never  been  discharged   from   the 
service  of  the  United  States  (on  account  of  disability)    (ou  account 


APPENDIX  6. 

of  a  sentence  imposed  by  a  civil  court)  (pursuant  to  the  sentence  of 
a  general  court-martial)  (except  with  good  character)  and]  by  means 

of  willfully  concealing  from  (said)   ( ,  a)  recruiting  officer  the 

fact   that    (under   the   name   of  )    he   had   been   discharged 

at on  the  day  of  ,  19 — ,  from  (on  ac- 
count of  disability)  (on  account  of  a  sentence  imposed  by  a  civil 
court)  (pursuant  to  the  sentence  of  a  general  court-martial)  (not 
with  good  character)  when,  except  for  such  (misrepresentation) 

(concealment)  he  would  not  have  been  enlisted;  and  has,  at 

and  since  said  enlistment  received  (pay)  (allowances)  (pay  and  al- 
lowances) thereunder. 

3.  Specification:  In  that  did  procure  himself  to  be  enlisted 

in  the  military  service  of  the  United  States,  at ,  on  the 

day  of ,  19 — ,  [by  means  of  willfully  misrepresenting  to , 

a  recruiting  officer,  that  he  had  never  been   (convicted  of  a  felony) 
(imprisoned)  in  a  (reformatory)  (jail)  (penitentiary)  and]  by  means 

of  willfully  concealing  from  (said)   ( ,  a)  recruiting  officer,  the 

fact  that  (under  the  name  of  )    (he  had  been  convicted  of  a 

felony,  to  wit,  by  the court  in  and  for  ,)    (had 

been  imprisoned  In  a   (reformatory)    (jail)    (penitentiary)   under  a 
sentence  of  a  civil  court)  when,  except  for  such  (misrepresentation) 

(concealment)  he  would  not  have  been  enlisted;  and  has,  at 

and  since  said  enlistment  received  (pay)  (allowances)  (pay  and  allow- 
ances) thereunder. 

4.  Specification:  In  that  did  procure  himself  to  be  enlisted 

in  the  military  service  of  the  United  States  at ,  on  the 

day  of ,  19 — ,  [by  means  of  willfully  misrepresenting  to  —     — , 

a    recruiting    officer,    that    he    was    ( years    of    age)     (un- 
married)    ( )    and]    by    means    of    willfully    concealing   from 

(said)    ( ,   a)    recruiting   officer,   the   fact  that   he   was   then 

(under  the  age  of  eighteen  years)   (a  married  man)   ( ),  when, 

except  for  such  (misrepresentation)  (concealment)  he  would  not  have 

been  enlisted ;  and  has,  at and  since  said  enlistment,  received 

(pay)  (allowances)  (pay  and  allowances)  thereunder. 

CHARGE:   Violation  of  the  55th  Article  of  War. 

5.  Specification:  In  that  -  -  did  at  ,  on  the  day 

of ,  19 — ,  knowingly  (enlist)  (muster)  into  the  military  service 

of  the  United  States  one  ,  who,  as  he,  the  said  ,  then 

well  knew,  was  (an)  (insane)  (intoxicated)  ( )  (a)  person 

(who  had  been  convicted  of  a  felony)  (under  the  age  of  sixteen  (16) 
years)  ( —  — ),  whose  (enlistment)  (muster)  was  prohibited  by 

(law)   (regulations)   (orders). 

CHARGE:   Violation  of  the  56th  Article  of  War. 

6.  Specification:  In  that ,  did,  at  ,  on  the  day 

of  ,   19 — ,   knowingly   make   a   false  muster  of    ( )    as 


568 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

(present)  (  —  —  )  when  the  said  -  ,  as  he,  the  said  -  ,  then 
well  knew,  was  not  (present)  (  -  ),  but  was  (absent  with 
leave)  (  -  ). 

7.  Specification:  In  that  -  did,  at  -  ,  on  the  -  day 
of  -  ,  19  —  ,  knowingly  make  a  false  muster  of   (  -  )   as  a 
soldier  and  a  member  of  (  -  ),  when  the  said  -  ,  as  he,  the 
said  --  then  well  knew,  was  not  a  soldier  and  a  member  of 
said  (  -  )  but  was  a  (civilian)   (  -  —  ). 

8.  Specification:  In  that  -  did,  at  -  ,  on  the  -  day 
of  --  ,  19  —  ,  (sign)   (direct  -  to  sign)   (allow  -  to  sign) 
the  muster  roll  of  -  ,  for  the  period  --  to  -  ,  19  —  ,  he, 
the  said  -  ,  then  well  knowing  that  the  said  muster  roll  con- 
tained the  name  of  -  as  (a  soldier  and  a  member  of  said  -  ) 
(an  officer  of  said  -  )   (and  as  present  for  duty  therewith),  and 
that  the  said  -  was  not  (a  soldier)   (a  member  of  said  -  ) 
(an  officer  of  said  -  )  (present  for  duty)  but  was  then  (a  civilian) 
(a  member  of  company  -  )    (wholly  absent  from  military  duty) 

9.  Specification:  In  that  -  did,  at  -  ,  on  the  -  day  of 
—  ,  19  —  ,  (sign)  (direct  -  to  sign)  (allow  -  to  sign)  the 

muster  roll  of  -  ,  for  the  period  -  to  -  ,  19  —  ,  he  the 
said  -  ,  then  well  knowing  that  the  said  muster  roll  contained  a 
false  statement  that  -  (a)  (private)  (  -  )  of  said  —  -  ) 
was  (present)  (present  and  mustered)  (  -  ),  and  that  said  state- 
ment was  false,  in  that  the  said  -  was  not  (present)  (present 
and  mustered)  (  -  )  but  was  then  (absent  with  leave)  (absent 
without  leave)  (  -  ). 

10.  Specification:  In  that  -  did,  at  -  ,  on  or  about  the 
—  day  of  -  ,  19  —  ,  wrongfully  take  from  -  (the  sum  of 

$  -  )  (  -  ),  as  a  consideration  to  him  -  ,  for  knowingly 
permitting  the  muster-in  roll  of  --  on  the  mustering  in  of 
that  —  —  falsely  to  show  as  (mustered  in)  (  -  ),  -  ,  who, 
as  he,  the  said  -  ,  then  well  knew,  was  (were)  not  (mustered  in) 


11.  Specification:  In  that  -  did,  at  -  ,  on  or  about  the 
-  day  of  -  ,  19  —  ,  wrongfully  take  from  -  the  sum  of 
$  -  ,  (  --  )  as  a  consideration  to  him  -  ,  for  allowing  the 
muster  roll  of  -  ,  for  the  period  of  --  to  -  ,  19  —  ,  to 
show  -    —  as  (present  and  mustered)    (  -  ),  when,  as  he,  the 
said  -  ,  then  well  knew,  he  (they)  was  (were)  not  present  and 
mustered  as  shown  on  said  muster  roll. 

12.  Specification:  In  that  -  did,  at  -  ,  on  the  -  day 
of  -      —  ,  19  —  ,  knowingly  muster  one  -  as  (an  officer)    (a  sol- 
dier) of  —     —  ,  when  the  said  --  ,  as  he,  the  said  —     —  ,  then  well 
knew  was  not   (an  officer)    (a  soldier)   of  -  ,  but  was  then  a 
(civilian)   (  -  ). 


569 


APPENDIX  6. 

CHARGE:   Violation  of  the  57th  Article  of  War. 

13.  Specification:  In  that  ,  being  in  command  of ,  and 

it  being  his  duty  to  render  to  a  return  of  the  state  of  (the 

troops  under  his  command)   (the thereunto  belonging)  for  the 

period  to  ,  19 — ,  did,  at  on  the  day  of 

,  19 — ,  knowingly  make  a  false  return  for  said  period,  which 

return  was  false  in  that  it  showed  (one as  absent  with  leave) 

( ),  when  as  he,  the  said ,  then  well  knew  (the  said 

was  absent  without  leave)   ( ). 

14.  Specification:  In  that  ,  being  in  command  of ,  and 

it  being  his  duty  to  render  to  the a  return  of  the  state  of  (the 

troops  under  his  command)    (the  thereto  belonging)   for  the 

period to ,  did  (on  and  after  the day  of , 

19 — )    (from  until  ),  through   (neglect)    (design),  omit 

to  render  such  return. 

CHARGE:  Violation  of  the  58th  Article  of  War. 

15.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  desert  the  service  of  the  United  States,  and 

did  remain  absent  in  desertion  until  he  (was  apprehended)    (surren- 
dered himself)  at on  or  about  the day  of ,  19 — . 

16.  Specification:  In  that  did,  at  on  or  about  the 

day  of ,  19 — ,  in  the  (execution  of  a  conspiracy  to  desert 

the  service  of  the  United  States  previously  entered  into  with  

and  )    (presence  of ,  which  the  forces,  of  which  the  ac- 
cused was  a  member,  were  then  opposing),  desert  the  service  of  the 
United  States  and  did  remain  absent  in  desertion  until  he  (was  ap- 
prehended)   (surrendered  himself)  at  on  or  about  the  - 

day  of ,  19 — . 

17.  Specification:  In  that  and  did,  at  ,  on  or 

about  the day  of ,  19 — ,  acting  jointly,  in  pursuance  of  a 

common  intent  and  in  the  execution  of  a  conspiracy  to  desert  the 
service  of  the  United  States  previously  entered  into  by  them   (and 
in  the  presence  of ,  which  the  forces,  of  which  they  were  mem- 
bers, were  then  opposing),  desert  the  service  of  the  United  States  and 
did  remain  absent  in  desertion  until  they  (were  apprehended)    (sur- 
rendered themselves)  at on  or  about  the day  of -, 

19—. 

18.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  desert  the  service  of  the  United  States,  in 

that  he,  having  tendered  his  resignation  as  an  officer  of  the  Army, 
did,  prior  to  due  notice  of  the  acceptance  of  said  resignation,  and 
with  the  intent  to  absent  himself  permanently  therefrom,  quit  his 
(post)    (proper  duties)   without  leave. 

[NOTE.— See  A.  W.  28.] 

19.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  desert  the  service  of  the  Unk^d  States,  in 

that  he,  without  having  first  received  a  regular  discharge  from  the 

570 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

military  service,  did,  again  enlist  in  the    (Army)    (militia,  in  the 
service  of  the  United  States)    (Navy)   (Marine  Corps  of  the  United 

States)    (Army  of ). 

[NOTE. — See  A.  W.  28.1 

20.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of ,  19 — ,  desert  the  service  of  the  United  States,  by 

quitting  his  (organization)   (place  of  duty),  with  the  intent  (to  avoid 
hazardous  duty,  to  wit: )   (to  shirk  important  service,  to  wit: 

____„__,   \ 

[NOTE.— See  A.  W.  28.] 

21.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of  ,  19 — ,   attempt   to  desert  the  service  of  the 

United  States  by  (seeking  passage  to on  the  steamship  —  — ) 

( —   — ),  with  intent  permanently  to  remain  away  from  the  military 
service. 

22.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of  —     — ,  19 — ,  in  the  (execution  of  a  conspiracy  to  desert 

the  service  of  the  United  States  previously  entered  into  with  

and )   (presence  of ,  which  the  forces  of  which  he  was  a 

member  were  then  opposing)    attempt  to  desert  the  service  of  the 

United  States  by  (seeking  passage  to on  the  steamship ) 

( ),  with  intent  permanently  to  remain  away  from  the  military 

service. 

CHARGE:  Violation  of  the  59th  Article  of  War. 

23.  Specification:   In   that    did,    at    — ,    on    or    about 

the day  of ,  19 — ,  (advise)   (persuade)  to  desert 

the  service  of  the  United  States  by   (saying  to  him 

,  or  words  to  that  effect)   ( ). 

24.  Specification:  In    that   did,    at   ,    on    or    about 

the  day  of  ,  19 — ,  knowingly  assist  to  desert 

the  service  of  the  United  States  (by  supplying  him  with  a  railroad 

ticket  from  to  )    ( ),  he,  the  said  ,  then 

well  knowing  that  the  said  intended  to  use  the    (railroad 

ticket)   ( )  so  supplied  him  in  furtherance  of  his  plan  to  desert 

CHARGE:  Violation  of  the  60th  Article  of  War. 

25.  Specification:  In  that  ,  having  discovered  that  ,  a 

soldier  in  his  command,  was  a  deserter  from  the  (military  service) 

(naval  service)   (Marine  Corps)  did,  at ,  from  about  the 

day  of  ,  to  about  the day  of  ,  19 — ,  retain  said 

deserter  in  his  command  without  informing  superior  authority  or  the 
commander  of  the  organization  to  which  the  deserter  belonged  of 
the  presence  of  said  deserter  in  his  command. 

CHARGE:  Violation  of  the  61st  Article  of  War. 

26.  Specification:  In    that    did,    at    -      — ,    on    or    about 

the  —       —  day  of  —     — ,  19 — ,  fail  to  repair  at  the  fixed  time  to  the 
properly  appointed  place  (of  assembly)  for •. 

571 


APPENDIX  6. 

27.  Specification:  In    that    did,    at    ,    on    or    about 

the  day  of  ,  19 — ,  without  proper  leave,  go  from  the 

properly  appointed  place  (of  assembly)  for  ,  after  having  re- 
paired thereto  for  the  performance  of  said  duty. 

28.  Specification:  In   that   ,   did   at  ,   without  proper 

leave,  absent  himself  from  his  from  about  ,  19 — ,  to 

about ,  19 — . 

CHARGE:  Violation  of  the  62d  Article  of  War. 

29.  Specification:  In    that    did,    at    ,    on    or    about 

the day  of ,  19 — ,  use  (orally  and  publicly)  ( —    — )  the 

following   (contemptuous)    (disrespectful)    (contemptuous  and  disre- 
spectful) words  against  the  (President)    (Vice  President)    (the  Con- 
gress of  the  United  States)   (Secretary  of  War)   [(Governor)   (Legis- 
lature)  of  the   (State  of )    (Territory  of  )    ( ,  a 

possession  of  the  United  States),  in  which  he,  the  said  —     -  was 
then  quartered]  to  wit :  — ,  or  words  to  that  effect. 

CHARGE:  Violation  of  the  63d  Article  of  War. 

30.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of  ,  19 — ,  behave  himself  with  disrespect  toward 

,  his  superior  officer,  by  (saying  to  him , 


or  words  to  that  effect)    (contemptuously  turning  from  and  leaving 
him  while  he  was  talking  to  him  the  said )   ( ). 

CHARGE:  Violation  of  the  64th  Article  of  War. 

31.  Specification:  In  that  —     -  did,  at  ,  on  or  about  the 

day  of  ,  19 — ,  strike  ,  his  superior  officer,  who 


was  then  in  the  execution  of  his  office,    (in)    (on)   the  with 

(a)   (his)  . 

[NOTE. — For  assaults  upon  officers  amounting  to  felonies  see  A.  W.  93.] 
82.  Specification:  In  that  did,  at  ?  on  or  about  the 

day   of ,   19 — ,    (draw)    (lift  up)    a   weapon,   to  wit, 

a  against  ,  his  superior  officer,  who  was  then  in  the 

execution  of  his  office. 

33.  Specification:  In  that  -     —  did,  at ,  on  or  about  the 

day  of ,  19 — ,  offer  violence  against ,  his  superior 

officer,  who  was  then  in  the  execution  of  his  office,  in  that  he,  the 
said ,  did . 

34.  Specification:  In  that ,  having  received  a  lawful  command 

from  —     — ,  his  superior  officer,  to ,  did  at  —   — ,  on  or  about 

the day  of ,  19 — ,  willfully  disobey  the  same. 

CHARGE:   Violation  of  the  65th  Article  of  War. 

35.  Specification:  In  that  -     —  did,  at  ,  on  or  about  the 

day   of ,    19 — ,    (strike)     (assault)    ,    a    (war- 
rant officer)    (noncommissioned  officer)   who  was  then  in  the  execu- 

572 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

tion  of  his  office,  by  him    (in)    (on)    the  with    (a) 

(his)  . 

[NOTE. — For  assaults  upon  warrant  and  noncommissioned  officers  amounting 
to  felonies  see  A.  W.  93.] 

36.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,   (attempt)    (threaten)   to   (strike)    (as- 
sault)    ,  a    (warrant  officer)    (noncommissioned  officer)    [(in) 

(on)  the ]  with  (a)   (his)  ,  while  said was  in  the 

execution  of  his  office. 

37.  Specification:  In  that  ,  having  received  a  lawful  order 

from ,  a  (warrant  officer)    (noncommissioned  officer)  who  was 

then  in  the  execution  of  his  office,  to  ,  did  at  ,  on  or 

about  the day  of ,  19 — ,  willfully  disobey  the  same. 

38.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  [use  (threatening)   (insulting)   (threaten- 
ing and  insulting)  language,]   [behave  in  an  '(insubordinate)    (disre- 
spectful)   (insubordinate  and  direspectful)   manner]   toward  , 

a   (warrant  officer)    (noncommissioned  officer)  who  was  then  in  the 

execution  of  his  office,  by   (saying  to  him  ,  or  words  to  that 

effect)   ( ). 

CHARGE:   Violation  of  the  66th  Article  of  War. 

39.  Specification:  In  that did,  at ,  on  the  day 

of ,   19 — ,    (attempt  to   create)    (begin)     (excite)     (cause)    a 

mutiny  in by  [urging  the  members  of  said concertedly 

to  refuse  to  obey  the  lawful  orders  of  ,  their  (commanding) 

(superior)    officer,    to   ]    [unlawfully   assuming   control   over 

about soldiers  of  said  (command)   ( ),  and  in  the  execu- 
tion of  such  control  causing  said  soldiers  concertedly  to  disregard  and 

defy  the  lawful  orders  of  ,  their    (commanding)    (superior) 

officer  to   (assemble  for  drill)    ( ),]    [ ],  with  the  intent 

to  (usurp)    (subvert)    (override)    (neutralize)    (usurp,  subvert,  over- 
ride and  neutralize),  for  the  time  being,  lawful  military  authority. 

40.  Specification:    In    that   did,    at   ,    on    or   about 

the  day  of  ,  19 — ,  voluntarily  join  in  a  mutiny  which 

had   been   begun   in  against   the   lawful   military   authority 

of  -  ,  the  commanding  officer  thereof,  and  did,  with  intent  to 

(usurp)     (subvert)    (override)     (neutralize)     (usurp,   subvert,   over- 
ride, and  neutralize)  for  the  time  being,  in  concert  with  sundry  other 

members  of  said assembled  on  the  (parade  ground)   ( —     — ), 

refuse     to     (disperse)      (do     any     further     duty)      (assemble     for 
drill)   ( ). 

CHARGE:   Violation  of  the  67th  Article  of  War. 

41.  Specification:  In   that  ,   being  present   at   a    (mutiny) 

(sedition)   among  the  soldiers  of  ,  did  fail  to  use  his  utmost 

endeavor  to   suppress   the   same,  in   that,    (having  commanded   the 

21358°— 20 37 

573 


APPENDIX  6. 

men  of  his  own  company  to  return  to  their  quarters,  he  took  no 
means  to  compel  their  obedience  or  reduce  them  to  discipline  upon 
their  refusal  to  obey  said  command)  ( ). 

42.  Specification:  In  that  —   — ,  being  at  and   (knowing) 

(having  reason  to  believe)  on  the  day  of  ,  19 — ,  that 

a    (mutiny)    (sedition)    was  to  take  place  in  ,  on  or  about 

the  day  of  ,  19 — ,  did  fail  to  give  without  delay  in- 
formation of  said  intended  mutiny  to  his  commanding  officer. 

CHARGE:  Violation  of  the  68th  Article  of  War. 

43.  Specification:  In  that  ,  being  engaged   in   a    (quarrel) 

(fray)    (disorder)  among  persons  subject  to  military  law,  and  hav- 
ing been  ordered  into  (arrest)  (confinement)  by ,  did,  at , 

on  or  about  the day  of ,  19 — ,  [(refuse  to  obey)    (draw 

a  weapon,  to  wit  a  —     -  upon)    the  said  —   — ]    [threaten  the 

said hy  (saying  to  him  (her)  ,  or  words  to  that  effect) 

( )]  [do  violence  to  the  said ,  by ]. 

CHARGE:  Violation  of  the  69th  Article  of  War. 

44.  Specification:  In  that  ,  having  been  lawfully  placed  In 

(arrest  at  )    (confinement  in  )   on  or  about  the  

day  of  ,  19 — ,  did  at  on  or  about  the  day  of 

,  19 — ,  (break  his  said  arrest)    (escape  from  said  confinement) 

before  he  was  set  at  liberty  by  proper  authority. 

CHARGE:   Violation  of  the  70th  Article  of  War. 

45.  Specification:  In  that ,  being  then  charged  with  the  duty 

of  investigating  charges  preferred  against  ,  a  person  subject 

to  military  law,  who  had  been  placed  in  (arrest)    (confinement),  was 

at ?  on  or  about ,  19—,  responsible  for  unnecessary  delay 

in   investigating  said  charges,  in  that  he    (did  )    (failed  to 

CHARGE:   Violation  of  the  71st  Article  of  War. 

46.  Specification:  In  that  ,  being  on  duty  as   (provost  mar- 
shal)   (commander  of  the  guard)  at on  or  about  the  - 

day  of  -    ,  19 — ,  did  refuse  to   (receive)    (keep)   one  -      — ,  a 

prisoner  duly  committed  to  his  charge  by ,  an  officer  belonging 

to  the  forces  of  the  United  States  who,  at  the  time  of  committing 

said  prisoner,  delivered  to  the  said  an  account  in  writing, 

signed  by  himself,  of  the  (crime)  (offense)  charged  against  said 
prisoner. 

CHARGE:  Violation  of  the  72d  Article  of  War. 

47.  Specification:  In  that  ,   (having  been)    (being)   on  duty 

as  commander  of  the  guard  at ,  did,  on  or  about  the  —       —  day 

«f  ,  19—,  fail  to  report  in  writing  to  the  commanding  officer 


574 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

of  that (as  soon  as  relieved  from  his  guard)   (within  24  hours 

after  the  confinement  of  said  prisoner)  the  name  of ,  a  prisoner 

committed  to  his  charge,  the  offense  charged  against  him,  and  the 
name  of  the  officer  committing  him. 

CHARGE:  Violation  of  the  73d  Article  of  War. 

48.  Specification:  In  that  did,  at  — ,  on  or  about  the 

day    of    ,    19 — ,    [without    proper    authority    release] 


[through   (neglect)    (design)    (suffer)]  ,  a  prisoner  duly  com- 
mitted to  his  charge  (to  escape). 

CHARGE:   Violation  of  the  74th  Article  of  War. 

49.  Specification:  In  that  ,  being  at  the  time  the  command- 
ing officer  at  ,  and  an  application  having  been  duly  made  to 

him  by  the  of for  the   (delivery)    (apprehension  and 

securing)   of ,  a   (soldier)    (officer)   under  his  command,  who 

was   accused   of  a    (crime)    (offense)    committed   against   the   laws 

of ,  in  order  that  the  said might  be  brought  to  trial  did, 

at  -      — ,  on  the  day  of  ,  19 — ,    (refuse)    (willfully 

neglect)  to  (deliver  said  to  said  of  )    (aid  the 

said of in  apprehending  and  securing  the  said ). 

CHARGE:  Violation  of  the  75th  Article  of  War. 

50.  Specification:  In  that  did,  at  ,  on  the day 

of ,  19—,  misbehave  himself  before  the  enewv,    (by   (refusing) 

(failing)   to  advance  with  his  command,  which       ;l  then  been  or- 
dered forward  by  to  engage  with  ,  which  forces,  the 

said  command  was  then  opposing)   ( ). 

51.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of ,  19 — ,  run  away  from  his  (company)    ( —     — ), 

which  was  then  engaged  with  the  enemy,  and  did  not  return  thereto 
until  (after  the  engagement  had  been  concluded)   ( ). 

52.  Specification:  In  that  -      — ,  being  present  with  his 

while  it  was  engaged  with  the  enemy,  did  at  ,  on  or  about 

the  day  of  ,  19 — ,  shamefully  abandon  the  said  

and    (seek  safety  in  the  rear)    ( ),  and  did  fail  to  rejoin  it 

until  (the  engagement  was  concluded)  ( ). 

53.  Specification:  In  that did,  at ,  on  or  about  the 

day  of ,  19 — ,  while  before  the  enemy  shamefully  (deliver  up) 

(abandon)  to  the  enemy  —     — ,  which  it  was  his  duty  to  defend. 

54.  Specification:   In   that   did,    at   ,    on   or    about 

the  —       —  day  of ,  19 — ,  while  before  the  enemy,  by  his  (mis- 
conduct)   (disobedience)    (neglect)    endanger  the  safety  of  , 

which  it  was  his  duty  to  defend,  in  that  he  ( )   ( )   (failed 

and  neglected  f>  post  a  sufficient  number  of  sentinels). 

55.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  while  before  the  enemy,  speak  words  in- 


575 


APPENDIX  6. 

ducing  [(the  officers)    (the  soldiers)    (the  officers  and  soldic-fcs)   of 

]    [ ]    (to  misbehave  themselves  before  the  enemy)    (to 

run  away  from  ,  which  was  then  before  the  enemy)    (shame- 
fully to  abandon  their  command,  which  was  then  engaged  with  the 

enemy)  (shamefully,  to  deliver  up  to  the  enemy, ,  which  it  was 

their  duty  to  defend),  to  wit or  words  to  that  effect. 

56.  Specification:    In    that   did,    at   ,    on    or    about 

the day  of ,  19 — ,  while  before  the  enemy  speak  words 

inducing  -       -  who  was  then  on  outpost  duty,  (shamefully  to  aban- 
don his  post)   (—     — ),  to  wit  —     -  or  words  to  that  effect. 

57.  Specification:  In  that ,  while  before  the  enemy,  did  at 

— ,  on  the day  of ,  19 — ,  unlawfully  cast  away  his 

(rifle)   (ammunition)   ( ). 

58.  Specification:  In  that  did,  while  before  the  enemy,  quit 

his  (post)   (colors)  at ,  on  the day  of ,  19 — ,  for 

the  purpose  of  (plundering)    (pillaging)    (plundering  and  pillaging) 

( ). 

59.  Specification:   In   that  did,   while  on  duty  before  the 

enemy,  occasion  a  false  alarm  in  the  (camp)    (garrison)    (quarters) 

( —     — )  at  ,  on  or  about  the  day  of ,  19 — ,  by 

(needlessly  and  without  authority  causing  the  call  to  arms  to  be 
sounded)    ( ). 

CHARGE:  Violation  of  the  76th  Article  of  War. 

60.  Specification:  In  that  did,  at  — ,  on  or  about  the 

day  of ,  19 — ,  (compel)   (attempt  to  compel)  ,  the 


commanding  officer  of  ,    (to  give  it  up  to  the  enemy)    (to 

abandon  said ),  by . 

CHARGE:   Violation  of  the  77th  Article  of  War. 

61.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  make  known  the  (parole)    (countersign), 


to  wit,  -  ,  to  -  ,  a  person  who,  according  to  the  rules  and 
discipline  of  war,  was  not  entitled  to  receive  it. 

62.  Specification:  In  that  -  ,  having  received  as  the  proper 
(parole)    (countersign)  the  word  -  ,  did  at  -  ,  on  or  about 
the  -  day  of  —  —  ,  19  —  ,  give  to  -  ,  a  person  to  whom  he 
knew  it  was  his  duty  to  give  the  proper  (parole)    (countersign),  a 
(parole)    (countersign)   different  from  that  which  he  had  received, 
to  wit  -  . 

CHARGE:  Violation  of  the  78th  Article  of  War. 

63.  Specification:  In  that  -     —  did,  at  -  ,  on  or  about  the 
-  day  of  -  ,  19  —  ,  force  a  safeguard,  known  by  him  to  have 
been  placed  over  the  premises  occupied  by  -  ,  at  —   —  ,  by 
(overwhelming  the  guard  posted  for  the  protection  of  the  same) 


576 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

CHARGE:  Violation  of  the  79th  Article  of  War. 

64.  Specification:  In  that  did,  at  ,  on  or  about  the 

-  day  of  ,  19 — ,  neglect  to  secure  the  following  public 

property  of  the  United  States,  which  had  been  taken  from  the  enemy, 

viz, of  the  value  of  about  $ and of  the  value  of 

about  $ ,  and  all  of  the  total  value  of  about  $ . 

65.  Specification:  In  that  did,  at ,  on  or  about  the 

—  day  of ,  19 — ,  wrongfully  appropriate  to  (his  own  use) 

( —     — )   the  following  public  property  of  the  United  States,  taken 

from  the  enemy,  viz : of  the  value  of  about  $ and 

of  the  value  of  about  S ,  and  all  of  the  total  value  of  about 


CHARGE:  Violation  of  the  80th  Article  of  War. 

66.  Specification:  In  that did,  at ,  on  about  the 

day  of ,  19 — ,  unlawfully   (buy)    (sell)    (trade  in)    (deal  in) 

(dispose  of)   the  following  (captured)    (abandoned)  property  of  the 
United  States-,  namely:  of  the  value  of  about  $ and 

of  the  value  of  about  $ ,  and  all  of  the  total  value  of 

about  $ ,  thereby  (receiving)    (expecting)  as  (profit)    (benefit) 

(advantage)   (profit,  benefit  and  advantage)  to  (himself)  ,  his 

(brother)  ( ),  (the  sum  of )  ( of  the  value ). 

67.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of  ,  19 — ,  fail  to  give  notice  of  and  to  turn  over 

without  delay  to  proper  authority  the  following  (captured)    (aban- 
doned) property  of  the  United  States,  which  had  come  into  his  (pos- 
session)   (custody)    (control),  namely:  of  the  value  of  about 

$ and of  the  value  of  about  $ ,  and  all  of  the  total 

value  of  about  $ . 

CHARGE:  Violation  of  the  81st  Article  of  War. 

68.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  (relieve)   (attempt  to  relieve)  the  enemy 

with    (arms)    (ammunition)    (supplies)    (money)    ( ),  by  fur- 
nishing and  delivering  to  certain  members  of  the  enemy's  army , 

of  the  value  of  about  $ ,  and  ,  of  the  value  of  about 

$ ,  all  of  the  total  value  of  $ . 

69.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  knowingly  (harbor)  (protect)  (harbor  and 

protect)  ,  a  person  whom  he,  the  said ,  then  knew  to  be 

a  member  of  the  enemy's  forces  (and  who  was  then  being  sought  by 
a  patrol  of  the  United  States  forces),  by  (concealing  the  said  member 
of  the  enemy's  forces  in  his  house)  ( ). 

70.  Specification:  In  that did,  at ,  on  or  about  the 

day  of ,  19 — ,  knowingly  give  intelligence  to  the  enemy,  (by  in- 
forming a  patrol  of  the  enemy's  forces  of  the  whereabouts  of  a  military 
patrol  of  the  United  States  forces)   (by ). 


577 


APPENDIX  6. 

71.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of  ,  19 — ,  knowingly    (hold  correspondence  with) 

(give  intelligence  to)   (hold  correspondence  with  and  give  intelligence 
to)  the  enemy  (directly  by  writing  and  transmitting  secretly  through 

the  lines  to  one ,  whom  he,  the  said ,  then  knew  to  be  an 

(officer)    ( )  of  the  enemy's  army,  a  communication  (in  woids 

and  figures  as  follows)   (substantially  as  follows)   (indirectly  by  pub- 
lishing in  -      — ,  a  newspaper  published  at ,  a  communication 

in  words  and  figures  as  follows)    (substantially  as  follows),  to  wit: 
,  and  which  communication  was  intended  to  reach  the  enemy. 

CHARGE:   Violation  of  the  82d  Article  of  War. 

72.  Specification:  In  that  was,  at  ,  on  or  about  the 

-  day  of  ,  19 — ,  found   (lurking)    (acting)    (lurking  and 

acting)  as  a  spy  in  and  about ,  the  (fortification)  (post)  (quar- 
ters) (encampment)  of  the  Armies  of  the  United  States  there  situ- 
ated, ( )  for  the  purpose  of  (collecting)  (attempting  to  collect) 

material  information  in  regard  to  the  (numbers)  (resources)  (op- 
erations) ( )  of  the  military  forces  of  the  United  States,  with 

intent  to  impart  the  same  to  the  enemy. 

CHARGE:  Violation  of  the  83d  Article  of  War. 

73.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  (willfully)  (through neglect)  suffer , 


of  the  value  of  $ ,  military  property  belonging  to  the  United 

States,  to  be  (lost)  (spoiled  by — = )  (damaged  by )  [wrong- 
fully disposed  of  by  (sale  to )   ( )]. 

CHARGE:   Violation  of  the  84th  Article  of  War. 

74.  Specification:  In  that  —      -  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  (unlawfully  sell  to  )    (wrongfully 

dispose  of  by )  of  the  value  of  $ ,  issued  for  use 

in  the  military  service  of  the  United  States. 

75.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  (willfully)    (through  neglect)    (injure  by 

• )    (lose)  ,  of  the  value  of  $ ,  issued  for  use  in  the 

military  service  of  the  United  States. 

CHARGE:  Violation  of  the  85th  Article  of  War. 

76.  Specification:  In  that  was,  at  ,  on  or  about  the 

day  of ,  19 — ,  found  drunk  while  on  duty  as . 

CHARGE:   Violation  of  the  86th  Article  of  War. 

77.  Specification:  In  that  ,  being  on  guard  and  posted  as  a 

sentinel,  at  ,  on  or  about  the day  of ,  19 — ,  was 

found  (drunk)    (sleeping)  upon  his  post. 

78.  Specification:  In  that  ,  being  on  guard  and  posted  as  a 

sentinel,  at  -      — ,  on  or  about  the day  of  ,  19 — ,  did 

leave  his  post  before  he  was  regularly  relieved. 

578 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

CHARGE:   Violation  of  the  87th  Article  of  War. 

79.   Specification:  In  that  ,   who   was  then   commanding  in 

— ,  where  troops  of  the  United  States  were  serving,  did,  on  or 


about  the  day  of ,  19 — ,  for  his  private  advantage,  lay 

a   (duty)'  (imposition)    (duty  ami  imposition)   of  ( —   —  per  cent) 

( )  upon  the  sales  of  (victuals)   (certain  necessaries  of  life,  to 

wit,  —      — )  brought  into  said  —     — ,  for  the  use  of  the  troops  thereat. 

80.  Specification:  In  that ,  who  was  then  commanding  —     — , 

where  troops  of  the  United  States  were  serving,  did  on  or  about  the 

-  day  of  ,  19 — ,  for  his  private  advantage,  become  inter- 
ested in  the  sale  of   (victuals)    (certain  necessaries  of  life,  to  wit 

— )    ( ),  brought  into  said for  the  use  of  the  troops 

thereat  by  -  — ,  by  (receiving)  (entering  into  an  agreement  to  re- 
ceive) from  the  said  —  -  ( —  per  cent  of  the  profits  on  said  sales) 
(the  sum  of  $ — )  as  a  consideration  for  the  privilege  (of  —  — )  ex- 
tended by  him  to  said . 

CHARGE:   Violation  of  the  88th  Article  of  War. 

81.  Specification:   In    that   did,    at   ,    on    or   about 

the  —     —  day  of ,  19 — ,  unlawfully  (abuse)   (intimidate)   (do 

violence  to)    (and  wrongfully  interfere  with)  ,  a  person  bring- 
ing  (provisions)    (supplies)    (certain  necessaries)   to  wit  -    ,  to 

the  (camp)   (garrison)    (quarters)  of  the  forces  of  the  United  States 

at  —    -  by  [striking  and  beating  the  said  ]    [threatening  to 

kill  the  said if  he  continued  to  bring  such  (provisions)   (sup- 
plies) (necessaries)  into  said  (camp)  (garrison)  (quarters)]  [ ] 

[preventing  the  said  from  passing  over  a  road  leading  into 

said  -      — ]   [ ]. 

CHARGE:  Violation  of  the  89th  Article  of  War. 

82.  Specification:  In  that ,  being  with ,  (in  the  (quar- 
ters)  (garrison)  (camp)  at  —      — )   (while  on  the  march  from-  — 

to  —      — )  did,  at  —     — ,  on  or  about  the  —       —  day  of ,  19—, 

commit  (waste)  (spoil)  upon  the  property  of ,  by . 

83.  Specification:  In  that  —     — ,  being  with  —      — ,  (in  the  (quar- 
ters) (garrison)  (camp)  at )   (while  on  the  march  from  — 

to )  did,  at ,  on  or  about  the day  of ,  19 — , 

willfully  and  unlawfully,  and  without  having  been  ordered  by  his 
commanding  officer  so  to  do,  destroy  —  -  the  property  of  -  — , 
of  the  value  of . 

84.  Specification:  In  that .  being  with  —   — ,  (in  the  (quar- 
ters) (garrison)  (camp)  at )   (while  on  the  march  from  - 

to )  did,  at ,  on  or  about  the  —       —  day  of  —  — ,  19 — , 

commit  a  depredation  upon  (an)    (a)    (orchard)    ( )  belonging 

to ,  and  situated  at  or  near ,  by  unlawfully  (entering  the 

same  and  removing  growing  fruit  from  the  trees  of  said  orchard) 


579 


APPENDIX  6. 

85.  Specification:  In  that  ,  and  ,  being  with 

(in  the  (quarters)    (garrison)    (camp)  at  —    — )    (while  on 

the  march  from  to  )   did,  at  ,  on  or  about  the 

—  day  of  ~,  19 — ,  commit  a  riot,  in  that  they,  together 

with  certain  other  (soldiers)  (persons)  to  the  number  of  -  — , 
whose  names  are  unknown,  did,  (with  force  and  arms)  unlawfully 
and  riotously,  and  in  a,  violent  and  tumultuous  manner,  assemble  to 
disturb  the  peace  of  —  — ,  and  having  so  assembled,  did  (unlaw- 
fully, riotously  and  in  a  violent  and  tumultuous  manner  disturb,  enter 
and  break  up  )  (unlawfully  and  riotously  assault  by 

— ,)  to  the  terror  and  disturbance  of . 

86.  Specification:  In  that  -      — ,  who  was  then  the  commanding 

officer  of  —  — ,  at  ,  did,  on  the  —     -  day  of ,  19—, 

complaint  having  been  made  to  him  that  (damage  had  been  done  to 

— ,  the  property  of  —    — )    ( ,  the  property  of  —  — ,  had 

been  taken  by)    ( ,  a  )    ( soldiers)   of  his 

command,    (a)    person (s)    subject  to  military  law,  ,    (refuse) 

(omit)  to  see  reparation  made  to  the  said so  far  as  said 's 

pay  would  go  toward  such  reparation  and  as  provided  for  in  the  105th 
Article  of  War,  by  . 

CHARGE:   Violation  of  the  90th  Article  of  War. 

87.  Specification:    In    that    did    at    ,    on    or    about 

the day  of ,  19 — ,  wrongfully  use  a  (reproachful)    (pro- 
voking)    (reproachful   and   provoking)     (speech   to   wit:    -         -   or 

words  to  that  effect,  against)    (gesture  to  )    (by  shaking  his 

closed  fist  in  the  face  of  the  said )    (—    — ). 

CHARGE:  Violation  of  the  91st  Article  of  War. 

88.  Specification:  In  that  (and )   did  at  ,  on 

or  about  the day  of ,  19 — ,  fight  a  duel,   (with ) 

using,  as  weapons  therefor,  (swords)   (pistols)   ( —     — ). 

89.  Specification:    In    that   did,    at    —  — ,    on    or    about 

the   day   of  —  — ,   19 — ,   promote   a   duel   between   — 

and  by   knowingly   acting  as   a   messenger   for and 

knowingly  carrying  from  said  to  said  a  challenge  to 

fight  a  duel. 

90.  Specification:  In  that ,  being  officer  of  the  day  at  - 

and  having  knowledge  that  and  intended  and  were 

about  to  engage  in  a  duel  near  that  —  — ,  did  on  or  about  the 

day  of  —   — ,  19 — ,  connive  at  the  fighting  of  said  duel  by  knowingly 
permitting  —  — ,  one  of  the  parties  to  said  proposed  duel,  to  leave 
the  post  and  go  toward  the  place  appointed  for  said  duel  and  at  the 
time  and  at  the  hour  which  he,  —     — ,  then  knew  had  been  appointed 
therefor. 

91.  Specification:  In  that  —  — ,  being  officer  of  the  day  at , 

and  having  knowledge  on  or  about  the day  of  —  — ,  19 — „ 


580 


FORMS  FOB   CHARGES  AND  SPECIFICATIONS. 

that  a  challenge  to  fight  a  duel  (had  been  sent)  (was  about  to  be 
sent)  by  -  —  to  -  — ,  did  fail  to  report  that  fact  promptly  to 
the  proper  authority. 

CHARGE:  Violation  of  the  92d  Article  of  War. 

92.  Specification:    In    that did,    at   ,    on    or    about 

the  day  of  ,  19 — ,  with  malice  aforethought,  willfully, 

deliberately,    feloniously,    unlawfully,    and   with    premeditation    kill 
one ,  a  human  being  by  (shooting  him  with  a  rifle)    ( ). 

93.  Specification:    In    that   did,    at   ,    on    or    about 

the day  of ,  19 — ,  forcibly  and  feloniously,  against  her 

will,  have  carnal  knowledge  of . 

[NOTE. — For  charging  the  offense  denounced  by  section  279,  Federal 
Penal  Code  (having  carnal  knowledge  of  female  uuder  16),  see  Form  178. 
infra.] 

CHARGE:  Violation  of  the  93d  Article  of  War. 

94.  Specification:  In  that  did,  at ,  on  or  about  the 

day  of ,  19 — ,  willfully,  feloniously,  and  unlawfully  kill 

,  a  human  being  by  him    (in)    (on)    the  with 


95.  Specification:  In  that did,  at  ,  on  or  about  the 

—  day  of ,  19 — ,  unlawfully,  willfully,  and  feloniously  cut 

off  the  (hand)    (arm)    ( )   of  . 

[NOTE. — For  the  offense  of  maiming,  see  Form  No.  170,  infra.] 

96.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of  ,  19 — ,  willfully,  maliciously,  unlawfully  and 

feloniously  [(set  fire  to)   (burn)   (attempt  to  burn)]  [by  means  of  a 
dangerous  explosive,  to  wit (destroy)  (attempt  to  destroy)  ]  the 

(dwelling  house)  (store)   (barn)   (stable)   (a  building,  to  wit: , 

parcel  of  the  dwelling  house)  of . 

97.  Specification:  In  that  did,  at  —  — ,  on  or  about  the 

—  day  of ,  19 — ,  in  the  nighttime  feloniously  and  burglari- 
ously break  and  enter  the  (dwelling  house)   ( within  the  curtil- 
age) of ,  with  intent  to  commit  a  felony,  viz,  (larceny)   (rape) 

(murder)   ( ). 

98.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of  19 — ,  unlawfully  and  feloniously   (break  and 

enter)    (enter   without   breaking)    the    (dwelling)     (bank)     (store) 
(warehouse)   (shop)   (stable)    ( )   (apartment)   (room)    (steam- 
boat)   (canal  boat)    (vessel)    ( )    (railroad  car)    (yard,  where 

Oumber)   (coal)   ( )  was  deposited  and  kept  for  the  purpose  of 

trade)  with  intent  (to  break  and  carry  away  a  part  thereof,  to  wit, 

)   (to  break  and  carry  away  a  (fixture,  thereof,  to  wit, )' 

(—    — ,  a  thing  (attached  to)   (connected  with  said )  (to  com- 
mit a  criminal  offense,  to  wit, ). 


581 


APPENDIX  6. 

99.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  by  force  and  violence  and  by  putting  him 


in  fear  feloniously  take,  steal  and  carry  away  from  the    (person) 

(presence)    of  ,  ,  the  property  of  —  — ,  value  about 

$ . 

[NOTE. — While  under  section  284  of  the  Federal  Penal  Code  a  specification 
in  the  following  form  (No.  99)  is  sufficient,  it  is  generally  preferable  to  follow 
Form  No.  98,  in  order  that  the  court  may  make  a  finding  of  guilty  of  the 
lesser  included  offense  of  larceny  should  only  this  offense  be  proved.] 

100.  Specification:  In  that  -     —  did,  at  —  — ,  on  or  about  the 
—  day  of ,  19 — ,  by  force  and  violence  and  by  putting  him 

in  fear,  feloniously  take  from  the    (person)    (presence)   of , 

— ,  value  about  $ . 

101.  Specification:  In  that  did,  at  ,  on  or  about  the 

-  day  of  —   — ,  19 — ,  feloniously  take,  steal,  and  carry  away 

,  value  about  $ ,  the  property  of . 


102.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  fraudulently  convert  to  his  own  use  and 


benefit  —     — ,  value  about  $ ,  the  property  of  —  — ,  intrusted 

to  him  (by  the  said  — •• )   (for by ),  for  the  purpose 

of  applying  the  same  to  the  use  and  benefit  of  the  said ,  (the 

owner)    (the  person  so  delivering)   said  property. 

103.  Specification:  In  that ,  being  at  the  time  the   (agent) 

(attorney)    (clerk)    (servant)    ( ,  an  officer)    of   ( —     — )    (an 

association)    (an  incorporated  company)   did  [wrongfully  convert  to 
his  own  use]   [fraudulently  (take)    (make  way  with)    (secrete)  with 
intent  to  convert  the  same  to  his  own  use]  ,  of  the  value  of 

— ,  the  property  of  -      — ,  which  came    (into  his  possession) 
(under  his  care)   by  virtue  of  his   (employment)    (office). 

104.  Specification:  In  that ,  having  taken  an  oath  in  a  (trial 

by  court-martial  of )    (deposition  for  use  in  a  trial  by 

court-martial  of )    ( ),  a  case  in  which  a  law  of 

the   United    States   authorizes   an   oath   to   be   administered,   before 
— ,   a  competent    (tribunal)    (officer)    (person)    that    [he  wrould 
(testify)    (declare)    (depose)    (certify)   truly]    [(certain  written  tes- 
timony) a  (declaration)   (deposition)   (certificate)  subscribed  by  him 

was  true]  did,  at ,  on  or  about  the day  of ,  19 — , 

willfully,  corruptly,  and  contrary  to  such  oath,    (state)    (subscribe 

said  -      — ,  stating)   in  substance  that  ]   which   (statement) 

(declaration)    (deposition)    (certificate)   was  a  material  matter  and 
which  statement  he  did  not  believe  to  be  true. 

[NOTE. — For  perjury  under  Section  25  of  the  War  Risk  Insurance  Act,  see 
Form  No.   178.] 

105.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of  ,  19—,  with  intent  to   (defraud)    (injure)    (de- 
fraud and  injure)  falsely  (make)   [alter]   (in  its  entirety)  a  certain 
(check)   ( )  in  the  following  words  and  figures,  to-wit:  


582 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

[by  -  ]  which  said  (check)  (  -  )  was  a  writing  of  a  (public) 
(private)  nature,  which  might  operate  to  the  prejudice  of  another. 

106.  Specification:  In  that  -  did,  at  -  ,  on  or  about  the 

-  day  of  -  ,  19  —  ,  with  Intent  to  (defraud)    (prejudice  the 
right  of  another)   (defraud  and  prejudice  the  right  of  another)  will- 
fully, unlawfully  and  feloniously,  (pass)    (utter)    (publish)   [attempt 
to  (pass)   (utter)   (publish)]  as  true  and  genuine  a  certain  -  in 
words  and  figures  as  follows:  -  ,  a  writing  of  a   (public)    (pri- 
vate) nature,  which  might  operate  to  the  prejudice  of  another,  which 
said  -  was,  as  he,  the  said  -  then  well  knew,  falsely  (made) 
(altered)  and  forged. 

107.  Specification:  In  that  -  did,  at  -  ,  on  or  about  the 

-  day  of  -  ,  19  —  ,  commit  the  crime  of  sodomy,  by  feloni- 
ously and  against  the  order  of  nature  having  carnal  connection  with 
(  -  )    (a  mare,  the  same  being  a  beast)   (  -  ). 

108.  Specification:   In   that   -  did,    at   -  ,    on    or    about 
the  —       —  day  of  -  ,  19  —  ,  with  intent  to  (commit  a  felony,  viz, 

—  )  (do  him  bodily  harm),  commit  an  assault  upon  -  ,  by 
willfully  and  feloniously  (striking)  (  -  )  the  said  -  (in) 
(on)  the  -  with  a  -  . 

109.  Specification:    In    that   -   did,    at   -  ,   on    or    about 
the  --  day  of  -  ,  19  —  ,  with  intent  to  do  him  bodily  harm, 
commit  an  assault  upon  -  ,  by   (shooting)    (striking)    (cutting) 
(  -  )    him    (in)    (on)    the  -  ,  with  a   dangerous    (weapon) 
(instrument)     (thing)    to    wit,    a    (pistol)     (a    pickax)     (bayonet) 


CHAEGE:  Violation  of  the  94th  Article  of  War. 
110.  Specification:  In  that  -  did,  at  -      —  ,  on  or  about  the 
—  day  of  -  19  —  ,  (make)  (cause  to  be  made  by  —   —  )  a  claim 


against  the  [United  States  by  presenting  to  -  ,]  [(Finance 
Officer  at  -  )  (  -  )]  an  officer  of  the  United  States,  duly 
authorized  to  (approve)  (allow)  (pay)  (approve,  allow  and  pay) 
such  claims,  in  the  amount  of  $  -  for  (private  property  alleged 
to  have  been  (lost)  (destroyed)  in  the  military  service)  (  —  —  ), 
which  claim  was  (false)  (fraudulent)  (false  and  fraudulent)  in 
that  -  —  ,  and  was  then  known  by  said  --  to  be  (false) 
(fraudulent)  (false  and  fraudulent). 

111.  Specification:  In  that  -  did,  at  -  ,  on  or  about 
the  -  -  day  of  -  ,  19  —  ,  (present)  (cause  to  be  presented  by 
-  )  for  (approval)  (payment)  (approval  and  payment)  a  claim 
against  the  [United  States  by  (presenting)  (causing  to  be  presented) 
to  —  —  ,]  [(Finance  Officer  at  —  —  )  (—  —  )  an  officer  of  the 
United  States,  duly  authorized  to  (approve)  (pay)  (approve  and 
pay)]  such  claims,  in  the  amount  of  $  —  —  ,  for  (services  alleged  to 
have  been  rendered  to  the  United  States  by  -  —  )  (  -  ),  which 
claim  was  (false)  (fraudulent)  (false  and  fraudulent)  in  that  -  , 
and  was  then  known  by  the  said  -  -  to  be  (false)  (fraudulent) 
(false  and  fraudulent). 

583 


APPENDIX  6. 

112.  Specification:   In    that   did,   at   ,    on   or   about 

the  day  of  ,  19 — ,  enter  into  an    (agreement)    (con- 
spiracy)   (agreement  and  conspiracy)   with  ,  to  defraud  the 

United  States  by   (obtaining)    (aiding  —     -  to  obtain)  the  (allow- 
ance) (payment)  (allowance  and  payment)  of  a  (false)   (fraudulent) 
(false   and    fraudulent)    claim   against    the   United    States   in    the 
amount  of  $ ,  for  (supplies)   ( )  alleged  to  have  been  fur- 
nished to  the  United   States  by  ,  which  claim  was    (false) 

(fraudulent)    (false  and  fraudulent)   in  that  ,  and  was  then 

known  by  the  said  to  be   (false)    (fraudulent)    (false  and 

fraudulent). 

113.  Specification:  In  that  ,  for  the  purpose  of   (obtaining) 

(aiding  others,  viz, ,  to  obtain)   the   (approval)    (allowance) 

(payment)    (approval,  allowance,  and  payment)   of  a  claim  against 
the   [United  States,  by  presenting  to  -      — ]    [(Finance  Officer  at 

)   ( ),  an  officer  of  the  United  States  duly  authorized  to 

(approve)  (pay)  (allow)  (approve,  pay  and  allow)  such  claims]  did. 

at ,  on  or  about  the day  of ,  19 — ,  (make)   (use) 

(make  and  use)   [(procure)    (advise)  the  (making)    (use)    (making 

and  use)  of]  a  certain  (writing)   (paper)  to  wit: ,  which  said 

,  as  he,  the  said ,  then  knew  contained  a  statement  that 

,  which  statement  was  (false)    (fraudulent)   (false  and  fraud- 
ulent) in  that ,  and  was  then  known  by  the  said to  be 

(false)   (fraudulent)   (false  and  fraudulent). 

114.  Specification:  In  that  ,  for  the  purpose  of  (obtaining) 

(aiding  others,  viz,  to  obtain)   the   (approval)    (allowance) 

(payment)    (approval,  allowance,  and  payment)   of  a  claim  against 
the   [United  States  by  presenting  to  -      — ,]    [(Finance  Officer  at 

)   ( ),  an  officer  of  the  United  States  duly  authorized  to 

(approve)   (allow)  (pay)  (approve,  allow  and  pay)  such  claims]  did, 
at ,  on  or  about  the  • day  of ,  19 — ,  (make)   [(pro- 
cure)   (advise)    (advise  and  procure)   the  making  of]  an  oath   (by 

)  to  (the  fact  that )    (to  a  certain   (writing)    (paper) 

to  wit ,  to  the  effect  that )  which  said  oath  was  false  in 

that ,  and  was  then  known  by  the  said to  be  false. 

115.  Specification:  In  that  ,  for  the  purpose  of  (obtaining) 

(aiding  others,  viz,  to  obtain)   the   (approval)    (allowance) 

(payment)    (approval,  allowance  and  payment)   of  a  claim  against 
the   [United  States  by  presenting  to  —  — ,]    [(Finance  Officer  at 

)   ( )  an  officer  of  the  United  States,  duly  authorized  to 

(approve)  (allow)  (pay)   (approve,  allow  and  pay)  such  claims]  did, 

at  ,  on   or  about  the  day   of  ,   19 — ,    (forge) 

(counterfeit)    (forge  and  counterfeit)    [(procure)    (advise)    (procure 
and  advise)    the   (forging)    (counterfeiting)    (forging  and  counter- 
feiting)   of]    the   signature   of   upon     a    ,     ( ) 

[by ]  in  words  and  figures  as  follows : . 


584 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

116.  Specification:  In  that  ,  for  the  purpose  of   (obtaining) 

(aiding  others  to  obtain)    the    (approval)    (allowance)    (payment) 
(approval,  allowance,  and  payment)  of  a  claim  against  the  [United 

States  by  presenting  to ]  [  (Finance  Officer  at )  ( ), 

an  officer  of  the  United  States,  duly  authorized  to  (approve)   (allow) 

(pay)    (approve,  allow  and  pay)  such  claims]  did,  at  ,  on  or 

about  the  day  of  ,  19 — ,    (use)    (advise  the  use  of) 

(procure  the  use  of)  the  signature  of on  a  certain  (writing) 

(paper)  to  wit, such  signature,  being  (forged)  (counterfeited) 

(forged  and  counterfeited),  and  then  known  by  the  said to  be 

(forged)    (counterfeited)    (forged  and  counterfeited). 

117.  Specification:  In  that  ,  having   (charge)    (possession) 

(custody)   (control)  of  (money)   ( )  of  the  United  States,  (fur- 
nished)  (intended)   (furnished  and  intended)  for  the  military  service 

thereof,  did,  at ,  on  or  about  the day  of ,  19 — , 

knowingly  (deliver)  (cause  to  be  delivered)  to ,  the  said , 

having  authority  to  receive  the  same,    (an  amount)   which,  as  he, 

,  then  knew  was  ( dollars  cents)    ( )  less 

than  the  (amount)  for  which  he  received  a   (certificate)    (receipt), 
from  the  said . 

118.  Specification:  In  that ,  being  authorized  to  (make)    (de- 
liver)  (make  and  deliver)  a  paper  certifying  the  receipt  of  property 
of  the  United  States  (furnished)  (intended)  (furnished  and  intended) 

for  the  military  service  thereof,  did,  at ,  on  or  about  the 

day  of ,  19 — ,  (make)  (deliver)  (make  and  deliver)  to a 

writing  in  words  and  figures  as  follows:  ,  without  having  full 

knowledge  of  the  truth  of  the  statements  therein  contained  and  with 
the  intent  to  defraud  the  United  States. 

119.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  feloniously  take,  steal,  and  carry  away 

—  of  the  value  of  about  $ ,  property  of  the  United  States 

(furnished)    (intended)    (furnished  and  intended)    for  the  military 
service  thereof. 

120.  Specification:  In  that ,  being  at  the  time  -     — ,  did,  on 

the day  of ,  19 — ,  feloniously  embezzle  by  fraudulently 

converting  to  his  own  use  and  benefit, of  the  value  of 1 

the  property  of  the  United  States,  (furnished)   (intended)   (furnished 
and  intended)  for  the  military  service  thereof,  intrusted  to  him  the 

said by for  the  purpose  of  applying  the  same  to  the  use 

and  benefit  of  the  United  States. 

121.  Specification:  In  that  did,  at ,  on  or  about  the 

day  of  —  — ,  19 — ,  (knowingly  and  willfully  misappropriate) 

(knowingly  and  willfully  apply  to  his  own  use)   (knowingly  and  will- 
fully apply  to  his  own  benefit)   (knowingly  and  willfully  apply  to  his 
own  use  and  benefit)    [(wrongfuly)    (knowingly  and  without  proper 
authority)  (wrongfully  and  knowingly)   (sell)   (dispose  of  by )] 

of  the  value  of  about  $ ,  property  of  the  United 


585 


APPENDIX  6. 

States  (furnished)   (intended)   (furnished  and  Intended)  for  the  mili- 
tary service  thereof. 

122.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  knowingly  (purchase)    (receive  in  pledge 

for  an  (obligation)    (indebtedness)  )  from -,  (in)    (em- 
ployed in)  the  military  (service)  (forces)  of  the  United  States , 

of  the  value  of  about  $ ,  property  of  the  United  States,  the  said 

not  having  the  lawful  right  to  (sell)    (pledge)   the  same. 

CHARGE:   Violation  of  the  95th  Article  of  War. 

123.  Specification:  In  that  did,  at  ,  on  or  about  the 

-  day  of ,  19 — ,  [with  intent  to  defraud]  [with  intent  to 

(deceive)    (injure)    (deceive   and   injure)]    wrongfully   and   unlaw- 
fully make  and  utter  to ,  a  certain  check,  in  words  and  figures 

as  follows,  to  wit:  ,  [and  by  means  thereof,  did  fraudulently 

obtain  from ($ )  ( of  the  value  of  about  $ )  ] 

[in  payment  of ],  he,  the  said ,  then  well  knowing  that 

he  did  not  have  and  not  intending  that  he  should  have  (any  account 

with)   (sufficient  funds  in)  the Bank  for  the  payment  of  said 

check. 

124.  Specification:   In   that was,   at  ,   on   or   about 

the day  of ,  19 — ,  so  (drunk)    (disorderly)   (drunk  and 

disorderly)  while  in  uniform,  in  the  presence  and  hearing  of  several 
persons,  as  to  disgrace  the  military  service. 

125.  Specification:  In  that  ,  having  assigned  to  his 

claim   (against  the  United  States)  for  pay  in  full  for  the  month  of 

,  19 — ,  did,  at ,  on  or  about  the day  of ,  19 — , 

again  assign  to  said  claim   (or  for  the  use  of)    against  the 

United  States  for  pay  in  full  for  the  said  month  of  ,  19 — , 

which  second  assignment  was  by  him  known  to  be  false  and  fraudu- 
lent. 

126.  Specification:  In  that  ,  being  indebted  to  in  the 

sum  of  $ •  for  ,  which  amount  became  due  and  payable 

(on)   (about)  (on  or  about)  ,  did,  at ,  from ,  19 — , 

to ,  19 — ,  without  due  cause,  fail  and  neglect  to  pay  said  debt, 

notwithstanding  the  fact  that  heshad  been  repeatedly  requested  by  the 

said to  pay  the  amount  thereof,  thereby  bringing  discredit  upon 

the  military  service. 

127.  Specification:  In  that ,  having  on  or  about  the day 

of  19 —  become  indebted  to  in  the  sum  of  about  $ for 

— ,  and  having  failed  without  due  cause  to  liquidate  said  In- 
debtedness, and  having  on  or  about  the  day  of  ,  19 — , 

promised  in  writing  to  said  that  he  would  on  or  about  the 

day  of  ,  19 — ,  (settle  such  indebtedness  in  full)    (pay 

on  such  indebtedness  the  sum  of  $ ),  did,  without  due  cause,  at 

— ,  on  or  about  the  day  of  19 — ,  to  tiie  disgrace  of  the 

military  service,  fail  to  keep  said  promise. 


686 


FORMS  FOR  CHARGES  AND  SPECIFICATIONS. 

128.  Specification:   In   that  did,   at   ,   on   or   about 

the  —    —  day  of ,  19 — ,  with  intent  to  deceive .officially 

(report)    (state)    to   the  said  ,  that  ,  which    (report) 

(statement)  was  (known  by  the  said to  be  untrue)    (believed 

by  the  said to  be  untrue)   (made  by  the  said with  dis- 
regard of  a  knowledge  of  the  facts)    (made  by  the  said  as 

true  when  he  did  not  know  it  to  be  true)  in  that •. 

129.  Specification:  In  that  ,  with  intent  to  defraud  , 

did,  at  ,  on  or  about  the  day  of  ,  19 — ,  unlaw- 
fully pretend  to that ,  well  knowing  that  said  pretenses 

were  false,  and  by  means  thereof  did  fraudulently  obtain  from  the 
said  (the  sum   of  $ )    (merchandise   of   the   value  of 

130.  Specification:  In  that  ,  having  at  -,  on  or  about 

the  —       —  day  of ,  19 — ,  voluntarily  given  his  pledge  in  words 

and  figures  as  follows : ,  which  pledge  was  accepted  by  his  com- 
manding officer  ,  did,  at  ,  on  or  about  the  day 

of   ,   19 — ,   in    disregard    of   his    honor    violate    said   pledge 

by . 

CHARGE:  Violation  of  the  86th  Article  of  War. 

131.  Specification:  In  that ,  being  on  guard  as  a ,  did, 

at  -   ,  on  or  about  the day  of ,  19 — ,  abandon  his 

guard. 

[NOTE.- — This  form  will  be  used  only  in  case  -where  absence  from  guard  is 
coupled  with  an  intent  not  to  return  during  the  tour  of  duty.  Ordinary 
absence  from  guard  duty  will  be  charged  under  X  W.  61.) 

132.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of ,  19 — ,  wrongfully  [kick  a  public  (horse) in 

the  belly]   ( ). 

133.  Specification:  In  that ,  a  (sentinel)   (overseer)  ( ), 

being  in  charge  of  prisoners,  did,  at  ,  on  or  about  the 

day  of  ,  19 — ,  wrongfully  allow  ,  a  prisoner  under  his 

charge,  to  (go  to)   (enter)    (go  to  and  enter)  an  unauthorized  place, 
to  wit:  —  — . 

134.  Specification:  In  that ,  a  (sentinel)   (overseer)   (- ), 

being  in  charge  of  prisoners,  did,  at  ,  on  or  about  the  

day  of  •,  19 — ,  wrongfully  allow  ,  a  prisoner  under  his 

charge,   to    (hold   unauthorized   conversation   with   )    (loiter) 

(neglect  his  task  by )   (obtain )   ( ). 

135.  Specification:  In  that ,  a  (sentinel)  (overseer)   ( ), 

being  in  charge  of  prisoners  and  having  received  a  lawful  order  from 

— ,  to  require  a  prisoner  under  his  charge  to ,  did,  at  —    — ( 

on  or  about  the day  of ,  19 — ,  fail  to  obey  the  same. 

136.  Specification:  In  that  did,  at  ,  on  or  about  the 

day   of  ,   19 — ,   without  authority,  appear -in   civilian 

clothing. 

587 


APPENDIX  6. 

137.  Specification:  In  that did,  at  ,  on  or  about  the 

• day  of  ,  19 — ,  wrongfully  appear   (at)    (on)    - 

(without  his )   (with  his not  buttoned)   (in  an  unclean 

138.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  wrongfully  attempt  to  (strike)    ( ) 

(in)  (on)  the with . 

[NOTE. — For  assaults  upon  officers,  warrant  officers,  and  noncommissioned 
officers  amounting  to  felonies  see  A.  W.  93.] 

139.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of ,  19 — ,  commit  an  assault  upon by  wrong- 
fully (striking)   ( )  —     -  (in)   (on)  the with  —   — . 

[NOTE. — See  note  under  Specification  138.] 

140.  Specification:  In  that  —     -  did,  at (on  or  about  the 

day  of ,  19 — ),  (between  and  ),  with  the 

intention  of  evading  his   (duty)    ( )   as  a   (soldier)    ( ), 

feign  (illness),  (disability),  (insanity),  ( ). 

141.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of  ,  19 — ,  unlawfully   (attempt  to)    (threaten  to) 

(strike)  ( )  ,  a  sentinel  in  the  execution  of  his  duty,  [  (in) 

(on)  the ]  with . 

142.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of ,  19 — ,  wrongfully  strike  ( )  -      — ,  a  sen- 
tinel in  the  execution  of  his  duty,  (in)  (on)  the with . 

143.  Specification:  In  that  ,  a  prisoner  lawfully  in  confine- 
ment in  the  post  guardhouse,  ( —    — ),  did,  at ,  on  or  about 

the day  of ,  19 — ,  attempt  to  escape  from  such  confine- 
ment. 

144.  Specification:  In  that ,  a  prisoner,  did,  at ,  on  or 

about  the day  of ,  19 — ,  use  the  following  disrespectful 

language  to ,  a  sentinel  in  the  execution  of  his  duty :  *' ," 

or  words  to  that  effect. 

145.  Specification:  In  that ,  having  been  restricted  to  the 

limits  of ,  did,  at ,  on  or  about  the day  of , 

19 — ,  break  said  restriction  by  going  to . 

146.  Specification:   In   that   did,   at   ,    on   or   about 

the day  of ,  19 — ,  unlawfully  carry  a  concealed  weapon, 

viz,  a . 

147.  Specification:  In  that  did,  at  -      — ,  on  or  about  the 

day  of ,  19 — ,  wrongfully  (urinate)   (defecate)   ( ) 

(on  the  floor  of  the  squad  room)   ( ). 

148.  Specification:  In    that did,    at    —  — ,    or    or    about 

the day  of ,  19 — ,  willfully  and  unlawfully  [(conceal) 

(remove)    (mutilate)    (obliterate)    (destroy)]   [attempt  to   (conceal) 
(remove)    (mutilate)    (obliterate)    (destroy)]   [take  and  carry  away 
with  intent 'to  (conceal)   (remove)   (mutilate)   (obliterate)   (destroy) 
(steal)]   a  public  record,  to  wit:    (the  descriptive  list  of  ) 

5S8 


FORMS  FOB  CHARGES  AND  SPECIFICATIONS. 

149.  Specification:  In  that  ,  a  prisoner  lawfully  in  confine- 
ment in  the  post  guard  house,   ( ),  did  at  ,  on  or  about 

the —  day  of  — « — ,  19 — ,  conspire  with and to 

escape  from  such  confinement.     (For  joint  charge  see  par.  69.) 

150.  Specification:   In   that   did,   at   ,   on   or   about 

the day  of ,  19 — ,  willfully,  wrongfully,  and  unlawfully 

destroy ,  value  about  $ ,  property  of  the  United  States. 

151.  Specification:   In   that did,    at   ,   on   or   about 

the  -        -  day  of  —  — ,  19 — ,  through  carelessness,  discharge  a 
(service  rifle)    ( )  in  his  (squad  room),  (in  his  tent)    ( ). 

152.  Specification:  In  that  ,  having  received  a  lawful  order 

from  -      — ,  a  sentinel  in  the  execution  of  his  duty,  to ,  did, 

at ,  on  or  about  the  —    —  day  of ,  19 — ,  (fail  to  obey) 

(willfully  disobey)  the  same. 

153.  Specification:  In  that  was,  at  ,  on  or  about  the 

—  day  of  -      — ,  19 — ,    (drunk)    (disorderly)    (drunk  and  dis- 
orderly) in  (camp)    (post)    (quarters)    ( ). 

154.  Specification:  In  that  was,  at  ,  on  or  about  the 

-  day  of ,  19 — ,   (drunk)    (disorderly)    (drunk  and  dis- 
orderly) in  uniform  and  did  thereby  bring  discredit  upon  the  military 
service. 

155.  Specification:  In  that ,  a  sentinel  ( )  in  charge  of 

prisoners,  did,  at  —  — ,  on  or  about  the day  of ,  19 — , 

drink  intoxicating  liquor  with ,  a  prisoner  under  his  charge. 

156.  Specification:  In  that ,  a  prisoner,  was,  at ,  on  or 

about  the  —      —  day  of ,  19 — ,  found  drunk. 

157.  Specification:  In  that ,  having  received  a  lawful  order 

from  -       -  to  -      — ,  the  said being  in  the  execution  of  his 

office,  did,  at  —     — ,  on  or  about  the day  of ,  19 — ,  fail 

to  obey  the  same. 

158.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of  —     — ,  19 — ,  violate  (standing  orders)   (regulations)  of 
by . 

159.  Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of  —     — ,  19 — ,  wrongfully  use ,  a  narcotic  drug. 

160.  Specification:  In  that  ,  being  indebted  to in  the 

sum  of  $ —    — ,  which  amount  became  due  and  payable  (on)   (about) 

— ,  did,  at  -      — ,  on  or  about  the  day  of ,  19 — , 

without  due  cause,  fail  and  neglect  to  pay  said  debt,  notwithstanding 

the  fact  that  he  had  been  repeatedly  requested  by  the  said to 

pay  the  amount  thereof,  thereby  bringing  discredit  upon  the  military 
service. 

161.  Specification:  In  that ,  having  been  directed  to  report  for 

prophylactic  treatment  at  (the  post  hospital)   (—     — )  did,  at , 

on  or  about  the  —      —  day  of ,  19—,  fail  and  neglect  to  report  as 

directed. 

21358°—  20 38 


589 


APPENDIX  6. 

162.  Specification:  In  that  did,  at  ,  on  or  about  the 

day  of  ,  19 — ,  with  intent  to  deceive  ,  officially 

(report)    (state)    to   the  said  ,  that ,  which    (report) 

(statement)  was  (known  by  the  said to  be  untrue)    (believed 

by  the  said to  be  untrue)   (made  by  the  said with  disre- 
gard of  a  knowledge  of  the  facts)    (made  by  the  said as  true 

when  he  did  not  know  it  to  be  true)  in  that . 

163.  Specification:  In  that   (Sergeant)    (Corporal)   did,  at 

on  or  about  the day  of ,  19—,  gamble  with  Pri- 

and , 

Specification:  In  that  did,  at  ,  on  or  about  the 

—  day  of ,  19 — ,  gamble  in  quarters,  in  violation  of  orders. 

165.  Specification:  In  that  did,  at  ,  on  or  about  the 

-  day  of  ,  19 — ,  while  (at  a  barrack  window)    ( ) 

willfully  and  wrongfully  expose  in  an  iadecent  manner  to  public  view 
his  ( ). 

166.  Specification:  In  that (for  and  in  behalf  of  one ) 

did,  at  ,  on  or  about  the day  of  ,  19 — ,  loan  to 

$ ,  under  an  agreement  whereby  he,  the  said ,  was 

to  receive  for  the  use  of  said  money  for  (months)    (days) 

interest  at  the  rate  of per  cent  per  (annum)  (month)  (the  sum 

of  $ ),  thereby   (demanding)    (receiving)    (demanding  and  re- 
ceiving) an  usurious  rate  of  interest  for  said  loan. 

167.  Specification:  In  that  ,  while  posted  as  a  sentinel,  did, 

at  ,  on  or  about  the day  of  ,  19 — ,  loiter  on  his 

post. 

168.  Specification:  In  that  ,  with  intent  to  defraud,  did,  at 

,  on  or  about  the day  of ,  19 — ,  unlawfully  pretend 

to that ,  well  knowing  that  said  pretenses  were  false  and 

by  means  thereof  did  fraudulently  obtain  from  the  said  (the 

sum  of  $ )   (merchandise  of  the  value  of  $ )    ( ). 

169.  Specification:  In  that  ,  while  suffering   (with)    (from) 

— ,  did,  at  ,  on  or  about  the  day  of  ,  19 — , 

refuse  to  submit  to  the  (dental  or  medical  treatment)  (surgical  opera- 
tion)  prescribed  by  ,  the  attending   (dental)  surgeon  for  the 

(disease)    (injury),  the  said    (treatment)    (operation)   consisting  in 

,  (said  operation  having  been  certified  by  the  attending  surgeon 

as)  being  necessary  (for  the  removal  of  a  disability  that  prevents  the 
full  performance  of  military  duty)  and  without  risk  to  his  life  (and 
the  accused  having  been  advised  that  such  certificate  had  been  made). 

170.  Specification:  In  that  did,  at  —   — ,  on  or  about  the 

day  of ,  19 — ,  willfully  maim  himself  in  the by 

(shooting  himself  with )  ( ),  thereby  unfitting  himself  for 

the  full  performance  of  military  service. 

171.  Specification:  In  that did,  at  ,  on  or  about  the 

—  day  of  —     — ,  19 — ,  with  Intent  to  (maim)   (disfigure)   (maim 
and  disfigure),  willfully,  unlawfuHy,  and  feloniously  [(cut)    (bite) 


FORMS  FOB  CHARGES  AND  SPECIFICATIONS. 

(slit)  the  (nose)  (ear)  (lip)]  [(cut  out)  (disable)  the  tongue] 
[(put  out)  (destroy)  the  eye]  [(cut  off)  (disable)  the  (limb) 
( ,  the  member)]  of by . 

172.  Specification:  In  that  did,  at ,  on  or  about  the 

—  day  of ,  19 — ,  with  intent  to  (maim)   (disfigure)   (maim 

and  disfigure),  willfully,  unlawfully,  and  feloniously,  (throw)   (pour) 

upon -,  (scalding  hot  water)   (vitriol)  —  — ,  a  corrosive  acid) 

( a  caustic  substance). 

173.  Specification:  In  that  -      — ,  while  posted  as  a  sentinel,  did, 
at  -      — ,  on  or  about  the  -     —  day  of  -      — ,  19 — ,  wrongfully 
sit  down  on  his  post. 

174.  Specification:  In  that did,  at  ,  on  or  about  the 

-  day  of  —  — ,  19 — ,  while  accompanying  his  organization  oil 

(a  practice  march)   (maneuvers)  without  just  cause  straggle. 

175.  Specification:   In   that  -         -   did,    at   ,    on   or   about 

the    —      -   day    of ,    19 — ,    procure    to    commit    per- 
jury,  by   inducing   him,   the   said   ,   to   take   an   oath   before 

a    competent    (tribunal)     (officer)     (person)    in    a    (trial    by    court- 
martial    of    )     ( ),    a    case    in    which    a    law    of    the 

United  States  authorizes  an  oath  to  be  administered  that  [he,  the 
said   -      — ,   would    (testify)     (declare)     (depose)     (certify)    truly] 
[(certain  written  testimony)  a  (declaration)  (deposition)  (certificate) 
subscribed  by  him  was  true]  and,  willfully,  corruptly,  and  contrary 
to  such  oath,  to   (testify)    (declare)    (depose)    (certify)   as  follows: 

,  which  (testimony)    (declaration,  deposition,  etc,)  was 

false,  was  (material)  (a  material  matter)  and  was  known  by  the 
said  — : and  the  said to  be  false, 

176.  Specification:  In  that ,  a  prisoner  on  parole,  did,  at 

— ,  on  or  about  the day  of ,  19 — ,  break  his  parole 

by . 

177.  Specification:  In  that did,  at ,  on  or  about 

feloniously  receive,  have,  and  conceal   (describe  property  as  in  lar- 
ceny), of  the  goods  and  chattels  of  (name  owner),  then  lately  before 
feloniously  stolen,  taken,  and  carried  away;  he,  the  said  (accused), 
then  well  knowing  the  said  goods  and  chattels  to  have  been  so  felo- 
niously stolen,  taken,  and  carried  away. 

178.  Specification:  In  that  -        -  did,  at  -  ,  on  or  about  the 

—  day  of ,  19 — ,  in  a  claim  for  (family  allowance)    (com- 
pensation)   (insurance)   [in  ,  a  document  required  by  (regula- 
tions made  under)  the  War  Risk  Insurance  Act,  in  the  making  of  a 
claim   for    (family  allowance)    (compensation)    (insurance),   to   wit 

— ]  willfully  and  unlawfully  make  a  statement  that which 

statement  was  a  material  fact,  and  known  by  the  said  to  be 

false,  in  that . 

179.  Specification:  In  that  did,  at  ,  on  or  about  the 

• day  of — ,  19 — ,  carnally  and  unlawfully  know  a 

female  under  the  age  of  sixteen  years. 


591 


APPENDIX  7. 

FORMS  FOR  SYNOPSES  OF  CONVICTIONS  BY 
COURT-MARTIAL. 

(For  Entry  in  Service  Record.) 

INSTRUCTIONS. 

The  forms  for  recording  the  synopses  of  convictions  by  court-martial 
as  set  forth  below  constitute  a  general  guide  for  use  in  entering  con- 
victions on  the  service  record,  the  synopsis  of  the  record  being  entered 
in  the  following  sequence  in  each  case: 

(a)  Article  of  War;  (&)  synopsis  of  specification;  (e)  date  of  com- 
mission of  offense. 

(See  forms  for  synopses  of  sentences,  Appendix  14.) 

[The  figures  "  /18,"  at  the  end  of  each  form,  indicate  the  place  to 
fill  in  the  year.  Thus,  e.  g.,  for  1921,  write  "  /21."] 

FORMS. 

These  forms  cover  the  charges  and  specifications  given  in  Appen- 
dix 6. 
CHARGE:   54  AW. 

1.  Fraud,  enl.  while  already  in  service, /18. 

2.  Fraud,  enl.  after  (dishonorable  discharge)    (conviction  of  fel- 

ony)  ( ), /18. 

8.  Fraud,  enl.  after  imprisonment  in  (jail)   (reformatory)   (peni- 
tentiary),    /18. 

4.  Fraud,  enl.  while  (under  18)   (married)   ( ), /18. 

CHARGE:   55  AW. 

5.  Omitted;  refer  to  officers  only. 
CHARGE:   56  AW. 

6  to  12,  inclusive,  omitted ;  refer  to  officers  only. 
CHARGE:   57  AW. 

13  and  14  omitted;  refer  to  officers  only. 
CHARGE:   58  AW. 

15.  Attempting  to  desert, /18. 

16.  In  the  (execution  of  a  conspiracy  with  -      — )   (presence  of 

the  enemy)  attempting  to  desert, /18. 

17.  Desertion  from until  (apprehended)    (he  surrendered 

himself)  on , /18. 

18.  In  the  (execution  of  a  conspiracy  with )    (presence  of 

the  enemy)  desertion  from until  (apprehended)   (he 

surrendered  himself)  on , /IB. 


592 


APPENDIX  7. 

19.  Jointly  with  others  in  the  execution  of  a  conspiracy  (arid  in 

the  presence  of  the  enemy)  deserted  from until  they 

(were  apprehended)    (surrendered  themselves)   on  f 

/18. 

CHARGE:    59  AW. 

20.  (Advising)   (persuading)  —  to  desert, 

21.  Knowingly  assisting to  desert, 

CHARGE:   60  AW. 

22.  Omitted ;  refer  to  officers  only. 
CHARGE:    61  AW. 

23.  Awol.,  from  -     —  to,  /IS. 

24.  Absent  from  (retreat)    ( ), 718. 

25.  Leaving  place  (of  assembly)  for   (retreat)    ( ), 

718. 

CHARGE:    62  AW. 

26.  Using  (contemptuous)  (disrespectful)  (contemptuous  and  dis- 

respectful) words  against  the of  the  (United  States) 

(  ),  /To. 

CHARGE:    63  AW. 

27.  Disrespect  toward  his  superior  officer, /18. 

CHARGE:   64  AW. 

28.  Willfully  disobeying  a  lawful  command  of  his  superior  officer, 

—  /18. 

29.  Willfully,  (drawing)    (lifting  up)  a against  his  supe- 

rior officer,  /18. 

30.  Willfully  striking  his  superior  officer, /18. 

CHARGE:    65  AW. 

31.  Willful  disobedience  of  a  lawful  order  of  a  NCO, /18. 

32.  (Attempting)     (threatening)    to    (strike)     (assault)    NCO, 

718. 

33.  (Insubordinate)     (disrespectful)     (insubordinate    and    disre- 

spectful) behavior  toward  NCO, 718. 

34.  Willfully  (striking)    (assaulting  NCO, 718. 

CHARGE:   66  AW. 

35.  Attempting  to  create  a  mutiny, 718. 

36.  Causing  a  mutiny, 718. 

37.  Joining  in  a  mutiny, /18. 

CHARGE:    67  AW. 

38.  Failing  to  give  information  of  an  intended  mutiny, 718. 

39.  With  others  attempting  to  break  into  a  jail  and  release  a 

prisoner, 718 

40.  Not  using  his  utmost  endeavor  to  suppress  a  mutiny,  • 

718. 


SYNOPSES  OF  CONVICTIONS  BY  COURT-MARTIAL. 

CHARGE:   68  AW. 

41*  Being  engaged  in  a  (quarrel)   (fray)   (disorder)  and  having 
been  ordered  into   (arrest)    (confinement)   by  (re- 
fused  to  obey    (drew  a  upon)    (threatened)    him, 

/18. 

CHARGE:   69  AW. 

42.  (Breach  of  arrest)    (escape  from  confinement), /18. 

CHARGE:   71  AW. 

43.  Refusing  to   (receive)    (keep)   a  prisoner,  while  on  duty  as 

/-IQ 

,   ~~"  /  -»-O. 

CHARGE:    72  AW. 

44.  As  commander  of  the  guard  failed  to  report  the  name  of  a 

prisoner  committed  to  his  charge,  /IS. 

CHARGE:    73  AW. 

45.  [Without    proper    authority    releasing    prisoner]     [suffering 

through  (design)   (neglect)  prisoner  to  escape],  —  —  /IS. 

CHARGE:    74  AW. 

46.  Omitted;  refers  to  officers  only. 

CHARGE:    75  AW. 

47.  (Abandoning)   (delivering  up  to  the  enemy)  ,  which  (it 

was  his  duty)   (he  had  been  ordered)  to  defend, —  /18. 

48.  Casting  away  his  (rifle)   (ammunition)  while  on  duty  before 

the  enemy, /18. 

49.  Being  (present  with)  (in  command  of  his )  abandoned 

said ,  and  (sought  safety  in  the  rear)  ( ),  while 

engaged  with  the  enemy,  A8. 

50.  Causing  a  false  alarm  in  the  (camp)    (garrison)    (quarters) 

( ),    at    ,    while  on    duty    before    the   enemy, 

/18. 

51.  Quitting  his   (company)    (post)    ( ),  at  —   — ,  to  (pil- 

lage) (plunder)   (pillage  and  plunder)  while  on  duty  before 
the  enemy,  /18. 

52.  Running  away  from  his  (company)   ( ),  which  was  then 

engaged  with  the  enemy,  /18. 

53.  (Inducing)     (seeking   to   induce)    soldiers    (and   officers)    to 

(abandon)    (deliver  up)  to  the  enemy ,  which  it  was 

their  duty  to  defend,  -    —  /18. 

54.  (Inducing)   (seeking  to  induce) ,  then  with  his  company 

engaged  with  the  enemy,  to  (run  away  from)    (abandon) 
his  (post)  ( ), /18. 

55.  (Inducing)  (seeking  to  induce)  ,  on  outpost  duty  before 

the   enemy   to    (run    away   from)    (abandon)    his    (post) 
( ), AS. 


594 


APPENDIX  7. 

CHARGE:   76  AW. 

56.  In  combination  with  others  of  his  command  compelled  the 

commander  to  (surrender)  (abandon)  ,  to  the  enemy, 

718. 

57.  Jointly  with  others  refusing  to  perform  further  duty  in  de- 

fense of ,  thereby  compelling  the  commander  thereof 

to     (abandon)     (surrender)    said    (fort)     (post)     (camp) 
(guard)   ( ), /IS. 

CHARGE:   77  AW. 

58.  Giving  to  a  person  entitled  thereto  the  wrong  (countersign) 

(parole),  -     —  /18. 

59.  Making  known  the  (countersign)   (parole)  to  a  person  not  en- 

titled thereto, /18. 

CHARGE:    78  AW. 

60.  Violating  a  safeguard, /18. 

CHARGE:   79  AW. 

61.  Appropriating  to    (his  own  use)    ( ),   public  property 

taken  from  the  enemy,  viz, of  the  value  of  $ , 

/18. 

62.  Neglecting  to  secure  for  the  service  of  the  United  States  public 

property  taken  from  the  enemy,  viz,  ,  of  the  value 

of  $ ,  /18. 

CHARGE:    80  AW. 

63.  (Buying)    (selling)   < )    (captured)    (abandoned)   prop- 

erty, viz, ,  of  the  value  of  $ , —  /18. 

64.  Failing  to  report   (captured)    (abandoned)    property  coming 

into  his   (possession)    (custody)    (control),  viz,  ,  of 

the  value  of  $ , /18. 

65.  Failing  to  turn  over  (captured)  (abandoned)  property  coming 

into  his   (possession)    (custody)    (control),  viz,  ,  of 

the  value  of  $ , /18. 

CHARGE:    81  AW. 

66.  Informing  an  enemy  patrol  of  the  whereabouts  of  a  United 

States  patrol, /18. 

67.  Knowingly  (harboring)    (protecting)    (harboring  and  protect- 

ing) a  member  of  the  enemy's  forces  who  was  then  being 
sought  by  a  United  States  patrol, /IS. 

68.  (Holding  correspondence  with)  (giving  intelligence  to)  (hold- 

ing correspondence  with   and   giving  intelligence   to)    the 
enemy, /18. 

69.  Furnishing  and  delivering to  members  of  the  eaeiny'a 

army,  to  the  value  of  $ , /18. 

CHARGE:    82  AW. 

70.  Acting  as-  a  spy, /18. 


SYNOPSES  OF   CONVICTIONS  BY  COURT-MARTIAL. 

CHARGE:    83  AW. 

71.  (Through  neglect)    (willfully)  suffering ,  of  the  value 

of  $ ,  military  property  of  the  United  States,  to  be 

(lost)  (spoiled  by  )  (damaged  by  )  [wrong- 
fully disposed  of  by  (sale  to  -  — )  ( )  ], /18. 

CHARGE:    84  AW. 

72.  [(Through  neglect)  (willfully)]  [(injuring)  (losing)] , 

of  the  value  of  $ ,  issued  for  use  in  the  military 

service  of  the  United  States, /18. 

73.  (Unlawfully  selling  to  —   — )    (wrongfully  disposing  of  by 

)  —  — ,  of  the  value  of  $ ,  issued  for  use  in 

the  military  service  of  the  United  States, 718. 

CHARGE:    85  AW. 

74.  Found  drunk  while  on  duty  as , /18. 

CHARGE:    86  AW. 

75.  Sleeping  on  post, /18. 

76.  Leaving  post  before  being  regularly  relieved, /18. 

CHARGE:    87  AW. 

77  and  78  omitted ;  refer  to  officers  only. 
CHARGE:   88  AW. 

79.  Doing  violence   to,   by   striking  and  beating,  an   inhabitant 

bringing  (supplies)  (provisions)  to  (camp)  (garrison) 
(quarters), /18. 

80.  Acting  jointly  with  (another)  (others)  interfered  with  an  in- 

habitant bringing  (supplies)  (provisions)  to  (camp)  (garri- 
son) (quarters), /18. 

81.  Intimidating  an  inhabitant,  bringing  (provisions)    (supplies) 

( )  into  (camp)  (garrison)  (quarters),  by  threaten- 
ing to  kill if  he  continued  to  bring  (provisions)  (sup- 
plies) ( —  — )  into  (camp)  (garrison)  (quarters)  ( ), 

718. 

CHARGE:    89  AW. 

82.  Committing  a  depredation  upon  (an  orchard)  ( )  by  en- 

tering same  without  authority  and  (removing  fruit  from 
trees)  ( ), /18. 

83.  Rioting  in  the  public  streets  of ,  by  (resisting  and  fight- 

ing against  the  peace  officers  of )    ( ),  

/18. 

84.  Willfully  destroying  a  growing  crop   (of  oats)    ( )   by 

(permitting  the  horses  of  his  troop  to  graze  therein) 
( ), 718. 

85.  Unauthorized  (destruction  of)   ( )   (a  building)   ( ), 

718. 

86.  Omitted ;  refers  to  officers  only. 
CHARGE:   90  AW. 

87.  Using  a  (reproachful)   (provoking)   (reproachful  and  provok- 

ing) speech  against  -  —  (accompanied  with  a  provoking 
gesture), /IS. 


596 


APPENDIX  7. 

CHARGE:   91  AW. 

88  and  89  omitted ;  refer  to  officers  only. 

90.  Fighting  a  duel, 

91.  Promoting  a  duel, 
CHARGE:   92  AW. 

92.  Murder,  killing ,  by  (shooting  him  with  a  rifle)  ( ), 

718. 

93.  Rape,  —      —  718. 
CHARGE:   93  AW. 

94.  Arson,  burning  a    (dwelling  house)    ( ),  /18. 

95.  With  intent  to  (do  him  bodily  harm)    (commit  a  felony,  viz, 

)  striking  ( )  (in)   (on)  the with 

a , /18. 

96.  Burglary, /18. 

97.  Embezzlement  of ,  of  the  value  of  $ ,  /18. 

98.  Larceny  of ,  of  the  value  of  $ , /18. 

99.  Manslaughter, /18. 

100.  Mayhem,  cutting  off  the  (hand)    (arm)    ( )  of , 

/18. 

101.  Perjury,  in  a  (trial  by  court-martial  of )   (deposition 

for  use  in  a  trial  by  court-martial  of )   (military  in- 
vestigation)  (civil  suit)   ( -), 718. 

102.  Robbery  by  (force  and  violence)   (putting  in  fear)  of 

of  the  value  of  $ (from ), 718. 

CHARGE:    94  AW. 

103.  (Making)  (causing  to  be  made  by )  a  (false)   (fraudu- 

lent)   (false  and  fraudulent)    claim  against  the    (U.   S.) 

( at  —    — )    ( ),  in  the  amount  of  $ —  — , 

for     (private    property     alleged     to     have    been     [lost] 
[destroyed]  in  the  military  service)    ( ),  /18. 

104.  (Presenting)    (causing  to  be  presented  by  )   for  (ap- 

proval)   (payment)    (approval   and   payment)    a    (false) 
(fraudulent)     (false   and  fraudulent)    claim   against   the 

(U.   S.)    ( at )    ( ),  in  the  amount  of 

$ —  — ,  for  (services  alleged  to  have  been  rendered  to  the 
U.  S.  by )  ( ),  —  -  718. 

105.  Entering  into  an  (agreement)    (conspiracy)    (agreement  and 

conspiracy)  with  ,  to  defraud  the  U.  S.  by  (obtain- 
ing) (aiding to  obtain)  the  (allowance)  (payment) 

(allowance  and  payment)  of  a  (false)  (fraudulent)  (false 
and  fraudulent)  claim  against  the  U.  S.,  in  the  amount  of 
$ —  — ,  for  (supplies)  ( —  — )  alleged  to  have  been  fur- 
nished to  the  U.  S.  by  -  — , 718. 

106.  (Making)    (using)    (making  and  using)  a   (false)    (fraudu- 

lent) (false  and  fraudulent)  statement  for  the  purpose  of 
(obtaining)  (aiding  others  to  obtain)  the  (approval)  (al- 


597 


SYNOPSES  OF  CONVICTIONS  BY  COURT-MAKTIAL. 

lowance)    (payment)    (approval,  allowance,  and  payment) 

of  a  claim  against  the  (U.  S.)  ( at )   ( ), 

718. 

107.  (Advising)    (procuring)    (ad vising  and  procuring)  the  making 

of  a  (false)  (fraudulent)  (false  and  fraudulent)  state- 
ment for  the  purpose  of  (obtaining)  (aiding  others  to  ob- 
tain) the  (approval)  (allowance)  (payment)  (approval, 
allowance,  and  payment)  of  a  claim  against  the  (D.  S.) 
( at )  ( ), /18.  . 

108.  (Making)    (advising  the  making  of)    (procuring  the  making 

of)    (advising  and  procuring  the  making  of)  a  false  oath 

by that ,  for   the  purpose  of    (obtaining) 

(aiding  others  to  obtain)  the  (approval)  (allowance)  (pay- 
ment) (approval,  allowance,  and  payment)  of  a  claim 
against  the  (U.  S.)  ( at )  ( ), /18. 

109.  (Forging)  (counterfeiting)  (forging  and  counterfeiting)  (the 

signature  of  —  upon  a  —  — )  (a )  for  the  pur- 
pose of  (obtaining)  (aiding  others  to  obtain)  the  (ap- 
proval) (allowance)  (payment)  (approval,  allowance,  and 
payment)  of  a  claim  against  the  (U.  S.)  ( at  —  — ) 

(  ),  /lo. 

110.  (Advising)    (procuring)   (advising  and  procuring)  the  (forg- 

ing)    (counterfeiting)     (forging    and    counterfeiting)    by 

,  of   (the  signature  of  upon  a  )    (a 

— )  for  the  purpose  of  (obtaining)  (aiding  others  to 
obtain)  the  (approval)  (allowance)  (payment)  (approval, 
allowance,  and  payment)  of  a  claim  against  the  (U.  S.) 
( at )  ( ), /IS. 

111.  (Using)    (advising  the  use  of)    (procuring  the  use  of)    a 

(forged)  (counterfeited)  (forged  and  counterfeited) 

for  the  purpose  of  (obtaining)    (aiding  others  to  obtain) 
the  (approval)    (allowance)    (payment)    (approval,  allow- 
ance, and  payment)  of  a  claim  against  the  (U.  S.)   ( — 
at )   ( ), /18. 

112.  Having     (charge)      (possession)      (custody)     (control)     of 

(money)    ( )   (furnished)   (intended)   (furnished  and 

intended)  for  the  military  service,  knowingly  (delivered) 

(caused  to  be  delivered)   to  ,   (an)    (a)    (amount) 

(number)  (quantity)  less  than  the  (amount)  (number) 
(quantity)  for  which  he  received  a  (certificate)  (receipt), 
at , /18. 

113.  (Making)     (delivering)     (making   and   delivering)    a   paper 

certifying  the  receipt  of  property  of  the  U.  S.  (furnished) 
(intended)  (furnished  and  intended)  for  the  military  serv- 
ice, without  having  full  knowledge  of  the  truth  of  the 
statements  therein  contained  and  with  the  intent  to  defraud 
the  U.  S., 718. 


APPENDIX  7. 

114.  (Stealing)     (embezzling)     (misappropriating)    (applying   to 

his  own  use)  (applying  to  his  own  benefit)  (applying  to  his 
own  use  and  benefit)  (wrongfully  selling)  (knowingly  and 
without  proper  authority  selling)  (wrongfully  and  know- 
ingly selling)  , of  the  value  of  about  $ —  — , 

property  of  the  U.  S., /18. 

115.  Wrongfully    and    knowingly     (purchasing)      (receiving     in 

pledge)  from  — (in)  (employed  in)  the  mili- 
tary service  for  an  (obligation)  (indebtedness)  ,  of 

the    value    of    about    $ ,    property    of    the    U.    S., 

718. 

CHARGE:   95  AW. 

116  to  124  omitted ;  refer  to  officers  only. 

CHARGE:   96  AW. 

125.  Abandoning  his  guard,  /18. 

126.  Kicking  a  public  (horse)   ( )    (in  the  belly)    ( ), 

/IS. 

127.  As   (sentinel)    (overseer)    ( ),  in  charge  of  prisoners, 

allowing  a  prisoner  t^  (go  to)  (enter)  (go  to  and  enter) 
an  unauthorized  place, /18. 

128.  As   (sentinel)    (overseer)    ( )   in  charge  of  prisoners, 

allowing  a  prisoner  to  (hold  unauthorized  conversation 
with )  (loiter)  (neglect  his  task  by )  (ob- 
tain   )  ( ), /18. 

129.  As  (sentinel)   (overseer)   ( )  being  in  charge  of  prison- 

ers, and  having  received  a  lawful  order  from  -      — ,  to 

require  a  prisoner  to  ,   failed  to  obey  the  same, 

718. 

130.  Appearing  in  civilian  clothing  without  authority, 718. 

131.  Appearing  (at)   (on)  (without  his )  <with  his 

-  not  buttoned)    (in  an  unclean )    ( —     — ), 

718. 

132.  Attempting  to  (strike)  ( )  (in)   (on)  the — 

with , 718. 

133.  Striking  ( )  (in)    (on)  the with  . 

718. 

134.  With  intent  to   evade    (duty)     ( )    feigning    (illness) 

(disability)   (insanity)   ( ), 7l& 

135.  (Attempting)    (threatening)   to  (strike)    ( )   -        -  a 

sentinel  (in)  (on)  the with , /18. 

136.  (Striking)   ( )  a  sentinel  (in)    (on)  the  

with  ,  718. 

137.  (Escaping)   (attempting  to  escape)  from  confinement, 

718. 

138.  As  a  prisoner,  using  disrespectful  language  to  a  sentinel, 

. 718. 

139.  Having  been  restricted  to  the  limits  of  ,  did  break 

same, 718- 

599 


SYNOPSES  OF  CONVICTIONS  BY  COURT-MARTIAL. 

140.  Unlawfully  carrying  a  concealed  weapon, /IS. 

141.  (Urinating)  (defecating)  ( )   (on  the  floor  of  the  squad 

room)  , /18. 

142.  Willfully  did,  [(conceal)    (remove)    (mutilate)    (obliterate) 

(destroy)]  [attempt  to  (conceal)  (remove)  (mutilate)  ob- 
literate) (destroy)]  [take  and  carry  away  with  intent  to 
(conceal)  (remove)  (mutilate)  (obliterate)  (destroy) 
(steal)]  a  public  record,  viz,  (the  descriptive  list  of 
)  ( ), /is. 

143.  As  a  prisoner  conspiring  with  and  to  escape 

from  confinement, /18. 

144.  Willfully  destroying  -      — ,   property   of  the  U.   S.,  value 

about  $ , 718. 

145.  Through  carelessness,  discharging  a  (service  rifle)    ( ) 

in  his  (squad  room)  (tent)   ( ), /18. 

146.  (Failing  to  obey)   (willfully  disobeying)  orders  from  a  senti- 

nel,   718. 

147.  (Drunk)    (disorderly)    (drunk  and  disorderly)    in    (camp) 

(post)  (quarters)   (—     — ),—      —718. 

148.  (Drunk)    (disorderly)    (drunk  and  disorderly)   in  uniform, 

718. 

149.  As  a  sentinel,  drinking  intoxicating  liquor  with  a  prisoner 

under  his  charge, 718. 

150.  While  a  prisoner,  was  found  drunk, /IS. 

151.  Failing  to  obey  a  lawful  order, /IS. 

152.  Violating  (standing  orders)  (regulations), /IS. 

153.  Wrongfully  using  a  narcotic  drug, /18. 

154.  Failing  to  pay  a  just  debt, /18. 

155.  Failing  to  report  for  prophylactic  treatment, /IS. 

156.  Making  a  false  official  (report)   (statement), /IS. 

157.  False  swearing, /IS. 

158.  Forging    (in   its  entirety)    [by    (altering  )    (erasing 

)     (adding  )]    a   certain    (check)    ( ), 

/18. 

159.  As  (sergeant)  (corporal)  gambling  with  privates, /IS. 

160.  Gambling  in  quarters  in  violation  of  orders, /IS. 

161.  Indecent  exposure, /18. 

162.  (On  behalf  of  another)  loaning  $ for (months) 

(days)  per  cent  per  (annum)  (month),  an  usurious  rate 
of  interest,  —  —  /18. 

163.  While  a  sentinel,  loitered  on  his  post, /IS. 

164.  Obtaining  by  false  pretenses  (from —   — )   (the  sum)   (mer- 

chandise of  the  value)  of  $ ( ), /IS. 

165.  Refusing  to  submit  to   (medical  treatment)    (dental  treat- 

ment)  (a  surgical  operation),  —     —  /18. 

166.  Willfully  maiming  himself  (by  shooting  himself  with ) 

(  )»  /1. 8. 


COO 


APPENDIX  7. 

167.  While  a  sentinel,  sitting  down  on  his  post,  -  /18. 

168.  Sodomy  committed  upon  the  person  of  one  -  ,  -  /18. 

169.  Straggling    while    (on    practice    march)     (at    maneuvers), 


170.  Knowingly  procuring  -  to  commit  perjury,  by  inducing 

him  knowingly  to  (give  false  testimony)  (make  a  false 
[declaration]  [certificate]  [deposition])  as  to  a  material 
matter  in  a  trial  (by  court-martial)  (  -  ),  -  /18. 

171.  With  intent  to  defraud,  knowingly  uttering  to  -  a  forged 

(written  instrument)   (  -  ),  -  /18. 

172.  Breach  of  parole,  while  a  prisoner,  -  /18. 

173.  With  intent  to   (maim)    (disfigure)   -  willfully   [(cut- 

ting) (biting)  (  -  )  the  (nose)  (ear)  (  -  )  of 
-  ]  [(throwing)  (pouring)  corrosive  acid  upon]  the 
said  -  ,  -  /18. 

174.  Knowingly  receiving  stolen  goods  of  the  value  of  $  -  , 


601 


APPENDIX  8. 
SUGGESTIONS  FOR  TRIAL  JUDGE  ADVOCATES. 


The  trial  judge  advocate  of  a  general  or  special  court-martial  shall 
prosecute  in  the  name  of  the  United  States,  and  shall,  under  the  direc- 
tion of  the  court,  prepare  the  record  of  its  proceedings.  (A.  W.  17.) 

The  following  notes,  indicating  more  or  less  in  proper  sequence  cer- 
tain action  usually  proper  to  be  taken  by  a  trial  judge  advocate,  may 
be  found  useful: 

1.  UPON  RECEIPT  BY  AN  OFFICER  OF  AN  ORDER  APPOINTING 
HIM  TRIAL  JUDGE  ADVOCATE  OF  A  COURT-MARTIAL. 

1.  Examine  the  order  and  any  amendatory  orders  carefully  and 
take  appropriate  action  to  cause  the  correction  of  any  substantial 
irregularity  therein. 

2.  Examine  and  study  such  portions  of  the  Manual  for  Courts- 
Martial,  Digest  of  Opinions  of  the  Judge  Advocates  General,  Army 
Regulations,  and  War  Department  or  other  orders  affecting  courts- 
martial  as  may  appear  desirable.     He  should,  in  this  connection,  give 
particular  attention  to  the  duties  of  trial  judge  advocates,  to  the  pro- 
cedure of  courts-martial,  and  to  the  matter  of  evidence. 

2.  UPON  RECEIPT  OF  CHARGES  IN  A  CASE. 

1.  Prepare  an  envelope  to  contain  the  papers  pertaining  thereto. 

2.  Examine  the  charges  and  all  papers  received  to  see  that  none 
appear  to  be  missing ;  that  the  charges  appear  to  be  correctly  drawn ; 
that  the  summaries  of  the  statements  of  the  witnesses  on  the  pre- 
liminary investigation  and  the  other  accompanying  documents  men- 
tioned in  paragraph  77  (ft),  M.  C.  M.,  are  all  in  order;  that  the  order 
of  reference  for  trial   is   indorsed  in   the  prescribed   form   on   one 
original  counterpart  of  the  charges ;  that  the  evidence  of  previous  con- 
victions, if  any,  is  complete  and  correct,  especially  as  to  dates,  authen- 
tication, proper  signatures,  etc. 

3.  Make — (taking  care  to  initial  each) — any  authorized  necessary 
changes  in  charges;  and  take  proper  action  in  connection  with  de- 
fects, if  any,  found  in  evidence  of  previous  convictions. 

4.  Report  to  the  appointing  authority  necessary  or  desirable  changes 
which  the  trial  judge  advocate  is  not  authorized  to  make. 

5.  Serve  the  accused  with  a  copy  of  the  charges  and  of  the  other 
papers  required  by  paragraph  77  (&),  M.  C.  M.,  and  sign  certificate 
of  such  service  in  the  prescribed  form  on  the  same  counterpart  of  the 
charges  upon  which  the  order  of  reference  for  trial  is  indorsed  (which 
is  the  counterpart  to  be  retained  by  the  trial  judge  advocate  during 
the  trial  and  returned  to  the  convening  authority  with  the  record  of 
trial). 

602 


SUGGESTIONS  FOR  TRIAL  JUDGE  ADVOCATES. 

6.  Consult  the  defense  counsel  of  the  court  and  ascertain  from  him 
whether  the  accused  desires  individual  counsel,  and,  if  asked  to  do  so, 
assist  in  arranging  for  such  individual  counsel  as  the  accused  may 
desire. 

7.  Prepare  case  for  trial,  investigating  it  thoroughly,  and  determin- 
ing upon  plan  of  prosecution. 

8.  Arrange  with  president  date  and  time  of  meeting  of  court 

9.  Arrange  for  court-martial  room,  see  that  it  is  in  order,  provided 
with  necessary  tables,  chairs,  stationery,  and  room  to  be  heated,  if 
necessary. 

10.  Notify  all  members  of  date  and  time  of  meeting  and  arrange 
for  presence  of  other  necessary  persons,  including  the  defense  coun- 
sel, the  accused,  and  his  individual  counsel,  reporter,  interpreter,  if 
required,  and  witnesses. 

11.  Arrange  to  have  at  trial  such  books,  etc.,  as  may  be  required. 
The  following  are  frequently  found  necessary  or  useful : 

Manual  for  Courts-Martial. 

Digest  of  -Opinions,  Judge  Advocates  General. 

Standard  Text  on  Military  Law. 

Ordnance  Price  List. 

Clothing  Price  List. 

12.  Determine  maximum  punishment,  if  any,  imposable  upon  con- 
viction of  each  of  the  several  offenses  charged,  and  be  prepared  to 
advise  the  court  thereof. 

3.  UPON  THE  ASSEMBLING  OF  THE  COURT. 

1.  Note  officers  present  and  absent,  members  of  the  court  including 
the  law  member,  trial  judge  advocate  and  assistants,  defense  counsel 
and  assistants. 

2.  When  the  court  appears  ready  to  proceed,  announce  the  readiness 

of  the  prosecution  to  proceed  with  the  trial  of ,  and  the 

presence  of  the  defense  counsel,  and  inquire  of  the  defense  counsel 
and  the  accused  whether  the  accused  desires  to  introduce  any  indi- 
vidual counsel    (to  be  ordinarily  introduced,  if  there  be  individual 
counsel,  by  the  defense  counsel). 

3.  Swear  reporter,  if  any. 

4.  Before  a  general  court-martial,  or  a  special  court-martial  where 
the  evidence  is  to  be  recorded,  ask  accused  if  he  desires  a  copy  of 
the  record  of  his  trial,  and  see  that  his  answer  appears  in  the  record. 
If  he  does  not,  do  not  have  carbon  copy  of  the  record  of  trial  of  a 
special  court-martial  made ;  if  he  wishes  copy,  direct  reporter  to  pre- 
pare one.     (Pars.  359  and  366  (b),  M.  C.  M.)  ;  and  direct  reporter  to 
prepare  a  carbon  copy  of  record  of  general  court-martial  trial  in  any 
case  (par.  355a,  M.  C.  M.). 

5.  Read  aloud  to  accused  the  order  appointing  the  court  and  each 
modifying  order. 


603 


APPENDIX  8. 

6.  If  it  is  expected  to  call  any  member  of  the  court  as  a  witness, 
or  if  any  member  is  known  to  be  an  accuser,  announce  that  fact 
and  request  the  court  to  excuse  such  member. 

7.  Request  that    any  member  of   the  court  who  has  formed   an 
opinion  concerning  the  case  or  any  of  the  material  facts,  or  who  for 
any  other  reason  thinks  himself  disqualified,  or  is  aware  of  any  facts 
which  he  believes  might  cause  either  party  to  desire  to  challenge 
him,  to  so  announce  (see  par.  126,  M.  C.  M.)   in  order  that  he  may 
be  excused  or  challenged.     In  a  proper  case,  request  the  court  to 
excuse  any  member  upon  such  announcement. 

8.  Exercise  the  right  of  challenge  in  a  proper  case.     (See  par.  120, 
M.  C.  M.) 

9.  After  concluding  challenges  for  the  prosecution,  ask  accused  if 
he  objects  to  being  tried  by  any  member  present  named  in  the  order 
convening  the  court  and  in  the  modifying  orders,  if  any. 

10.  After  action  on  a  challenge  by  the  accused,  if  any  is  made,  has 
been  had,  again  ask  the  accused  if  he  objects,  as  above.     Continue  this 
until  accused  has  no  further  objection. 

11.  Ask  the  accused  (if  the  accused  has  not  exercised  his  right  of 
peremptory  challenge)  whether  he  desires  to  challenge  any  member 
of  the  court  present  peremptorily. 

12.  Swear  members  of  the  court. 

13.  Be  sworn  by  the  president. 

14.  Read  charges  and  specifications,  including  the  signature  and 
the  oath  thereto,  and  the  order  of  reference  for  trial,  aloud  slowly  to 
the  accused,  and,  having  done  so,  ask  him  how  he  pleads  to  the  first 
specification,  first  charge — if  necessary,  rereading  to  him  the  specifica- 
tion ;  then  how  he  pleads  to  the  second  specification,  first  charge,  etc. ; 
then  to  the  first  charge,  etc. 

15.  If  there  be  any  special  pleas,  e.  g.,  to  the  jurisdiction  of  the 
court,  of  a  pardon,  of  the  statute  of  limitations,  or  the  like,  they 
will  properly  be  interposed  at  this  point. 

16.  If  it  appears  on  the  face  of  the  record  that  the  accused  might 
successfully  plead  the  statute  of  limitations,  the  law  member  of  a 
general  court-martial,  if  present,  or  otherwise  the  president,  or  the 
president  of  a  special  court-martial,  will  at  this  point  advise  the 
accused  of  his  legal  right  to  plead  the  statute  of  limitations,  and 
that,  if  he  does  not  plead  it,  it  will  be  considered  as  waived.     (See 
par.  149  (ft),  M.  C.  M.,  and  form  Appendix  9.) 

17.  Read  to  the  court  from  the  chapter  on  punitive  articles,  M.  C.  M., 
the  paragraph  or  paragraphs,  or  parts  of  paragraphs,  that  set  out  the 
gist  of  each  offense  charged,  stating  for  the  record  which  paragraphs, 
or  parts  of  paragraphs,  are  read. 

18.  If  there  be  a  plea  of  guilty,  the  law  member,  or  president,  as 
the  case  may  be,  makes  to  accused  the  required  explanations  and 
asks  him  the  required  questions.     (See  par.  154  (d)t  M.  0.  M.,  and 
form  Appendix  9.) 


604 


SUGGESTIONS  FOR  TRIAL  JUDGE  ADVOCATES. 

In  case  accused  lets  a  plea  of  guilty  stand,  then  warn  the  accused 
in  open  court  of  his  right  to  introduce  evidence  under  such  plea  in 
explanation  of  his  offense.  (Par.  96,  M.  C.  M.) 

19.  If  desired,  make  at  this  point  a  brief  opening  statement,  out- 
lining the  case  to  the  court.     (See  par.  197,  M.  C.  M.) 

20.  Introduce  and  swear  witnesses  for  the  prosecution.     In  some 
cases  it  may  be  desirable  to  acquaint  the  court  with  the  particular 
specification  with  which  the  testimony  of  a  particular  witness  is  con- 
nected. 

21.  In  all  cases  attempt  to  establish  by  evidence  each  of  the  sev- 
eral specifications,  except  such  elements  as  may  be  the  subjects  of 
judicial  notice  or  as  are  formally  admitted. 

22.  Examine  each  witness,  having  careful  regard  for  the  rules  of 
evidence. 

By  your  first  questions  carefully  identify  the  accused  by  his: 

(1)  Name, 

(2)  Army  serial  number,  if  an  enlisted  man,  and 

(3)  Grade  and  organization;  and  also 

(4)  That  the  accused  person  present  in  court  is  the  very  same 

person  about  whom  the  witness  is  testifying 

23.  Offer  opportunity  to  cross-examine. 
2,4.  Reexamine,  if  desirable. 

25.  Ask  court  if  there  are  any  questions  by  the  court. 

26.  If  any  witness  is  recalled,  remind  him  that  he  is  still  under  oath. 

27.  When  the  prosecution  has  nothing  further  to  offer  for  the  time, 
announce  that  the  prosecution  rests. 

28.  Ask  defense  counsel,  or  other  counsel  for  the  accused,  whether 
he  desires  to  make  an  opening  statement. 

29.  Swear  witnesses  for  defense,  in  succev^sion,  and  cross-examine 
so  far  as  desirable. 

30.  If  the  accused  testifies  in  his  own  b//half,  make  sure  that  he 
does  so  at  his  own  request,  and  that  the  record  so  shows. 

31.  If  the  accused  does  not  request  to  b*  sworn  as  a  witness,  he 
may  make  an  unsworn  statement  to  the  co*M*t.     Make  sure  that  the 
record  is  clear  as  to  what  the  accused  does  ).w  this  respect. 

32.  If  the  accused  does  not  testify  or  make  any  statement  in  his 
own  behalf,  invite  the  attention  of  the  court  to  the  explanation  re- 
quired to  be  made  to  the  accused  under  pai^graph  215,  M.  C.  M.,  and 
make  sure  that  the  explanation  is  properly  made;  and  that  it,  to- 
gether with  the  answers  of  the  accused  thereto,  As  noted  in  the  record. 
(For  form  see  Appendix  9.) 

33.  After  defense  rests,  swear  and  examine  witnesses,  if  any,  in 
rebuttal  for  prosecution. 

34.  Ask  the  court  whether  any  witnesses  are>  to  be  called  for  the 
court. 

35.  Offer  accused  opportunity  to  make  a  statement  and  argwmont 
21358°— 20 39 


€05 


APPENDIX  8. 

36.  Make  sure,  and  see  that  it  appears  in  the  record  when  the  time 
comes,  that  the  accused  has  no  further  evidence  to  offer,  testimony 
to  give,  or  statement  or  argument  to  make. 

37.  Make  closing  statement  or  argument. 

4.  ADJOURNMENT  BTTHING  TEIAL. 

* 

1.  Note  time  of  adjournment  (hour  and  date). 

2.  Arrange,  if  practicable,  to  have  completed  record  of  proceedings 
to  date  ready  before  next  assembling  of  court. 

3.  Subscribe  the  record  of  proceedings  for  the  day. 

5.  FINDINGS. 

1.  After  both  prosecution  and  defense  have  concluded  the  court 
closes  for  findings. 

2.  After  making  its  findings  the  court  is  reopened,  and  in  case  of 
acquittal  the  president  announces  the  acquittal  in  open  court. 

Otherwise,  the  court  will  ask  for  the  evidence  of  previous  convic- 
tions, if  any,  in  which  case  the  trial  judge  advocate  will  read  aloud 
duly  authenticated  evidence  of  any  previous  convictions  referred  to 
the  court  by  the  appointing  authority,  or  (if  such  be  the  fact)  state 
that  there  is  no  such  evidence  to  be  presented. 

3.  Invite  the  attention  of  the  court  to  any  apparent  irregularity 
in  the  evidence  of  previous  convictions. 

4.  In  case  such  evidence  of  previous  convictions  is  offered,  ask  the 
accused  whether  the  evidence  of  such  previous  convictions  Is  correct 
and  whether  he  has  any  statement  to  make  in  explanation  or  exten- 
uation thereof  or  in  relation  thereto. 

5.  Read  aloud  the  statement  of  service  of  the  accused  as  shown  on 
the  charge  sheet,  and  ask  the  accused  whether  the  same  is  correct 
and  whether  he  has  any  corrections  to  state  or  any  statement  to 
make  in  relation  thereto. 

6.  SENTENCE. 

1.  The  court  will  then  close  to  determine  upon  and  award  sentence 
(except  in  case  of  acquittal). 

2.  After  awarding  the  sentence  the  court  is  opened  and  the  president 
announces  the  findings  and  sentence  in  open  court   (except  in  those 
rare  cases  where  the  court  has  ordered,  under  paragraph  332a,  M.  G. 
M.,  that  the  findings  and  sentence  should  not  be  announced,  In  which 
case  the  president  announces  that  fact). 

3.  Invite  the  attention  of  the  court  to  any  apparent  irregularity  in 
the  findings  or  sentence. 


600 


SUGGESTIONS  FOE  TRIAL,  JUDGE  ADVOCATES. 
7.  ADJOURNMENT  AT  CLOSE  OF  TRIAL. 

1.  After  acquittal  or  sentence  has  been  announced  the  court  either 
proceeds  to  other  business  or  adjourns. 

2.  Note  time  (hour  and  date)   of  proceeding  to  other  business  or 
of  adjournment. 

3.  Notify  commanding  officer  in  writing,  direct,  of  result  of  trial. 
(See  Par.  332a,  M.  C.  M.) 

8.  AFTER  TRIAL. 

1.  Complete  vouchers  for  civilian  witnesses  and  deliver  same  if 
practicable  before  the  witnesses  leave. 

2.  In  those  rare  cases  where  the  court  has  not  announced  the  sen- 
tence, but  has  ordered  that  it  be  not  announced,  under  paragraph 
332a,  M.  C.  M.,  take  proper  measures  to  insure  the  security  of  the 
findings  and  sentence,  and  that  they  are  not  disclosed  to  any  but  the 
proper  authority. 

3.  When  record  is  received  back  from  reporter: 

(a)  Examine  carefully  to  see  that  it  is  in  proper  form,  com- 
plete, and  correct  as  to  both  form  and  substance. 

(&)  Make  proper  notation  on  index  sheet  as  to  copy  of  record. 
Deliver  copy  (if  any)  to  accused  personally,  and  get  his  receipt 
(or  make  affidavit  of  delivery)  and  attach  same  to  record. 

(c)  See  that  copies  of  evidence  of  previous  convictions,  if  any, 
are  correct,  certify  same,  and  return  originals  to  organizations. 

(d)  If  not  so  attached,  attach  index  sheet  and  all  exhibits. 

{e)  Attach  charges  and  all  other  papers  received  from  the  con- 
vening authority,  as  required  by  paragraphs  79  and  357 (b)  (or 
358),  M.  C.  M. 

(/)   See  that  record  is  securely  bound. 

4.  See  that  findings  and  sentence  are  properly  transcribed.      (In 
those  rare  cases  where  under  paragraph  332a,  M.  C.  M.,  the  findings 
and  sentence  have  not  been  announced  in  open  court,  enter  findings 
and  sentence,  and  if  so  entered  in  typewriting  add  proper  certificate.) 
(See  par,  357 (b),  item  55,  M.  O.  M.) 

5.  Authenticate  record. 

6.  Have   president    (or   in   his   absence   a   member)    authenticate 
record. 

7.  Certify  original  voucher  and  send  it  to  reporter  or  to  a  near  by 
disbursing  finance  officer,  and  inclose  copy  with  record  of  trial. 

8.  Verify  completeness  and  correctness  of  record  by  making  sure 
that,  so  far  as  necessary  in  the  particular  case,  each   requirement 
stated  in  Chapter  XV,  Section  I,  paragraph  357(&),  (or  358)  M.  C.  M., 
has  been  complied  with. 

9.  By  separate  letter  of  transmittal,  placed  on  the  front  of   (and 
bound  with)  the  record  of  trial,  forward  charges  with  record  of  trial, 
with  original  charge  sheet  and  all  other  papers  received  with  the 


GOT 


APPENDIX  8. 

case,  to  the  appointing  authority ;  and  also,  if  the  trial  was  by  general 
court-martial,  the  carbon  copy  of  the  record,  if  not  desired  or  accepted 
by  accused. 

9.  WEEKLY  REPORT. 

Each  Saturday,  report  through  the  president  of  the  court  and  the 
commanding  officer  all  charges,  if  any,  which  have  been  on  hand  more 
than  two  weeks,  and  which  have  not  been  returned  to  the  appointing 
authority,  showing  date  of  receipt  of  each  and  reasons  for  delay  in 
trial. 

10.  RECORD  WHICH  MAY  BE  KEPT. 

It  is  suggested  that  when  deemed  desirable  at  least  the  following 
record  be  kept  by  the  trial  judge  advocate  in  each  case.  This  record 
may  be  conveniently  kept  on  an  envelope  to  be  used  as  a  container 
for  the  charges  and  various  papers: 

Date  of  receipt  by  him  of  charges  or  other  papers. 
Date  of  service  of  charges  and  other  papers  on  accused. 
Date  of  preliminary  consultation  with  defense  counsel. 
How  accused  intends  to  plead,  if  stated  by  defense  counsel. 
Individual  counsel  for  accused: 
Desired?    If  so,  name? 

If  so,   date  on   which   commanding  officer  was  in- 
formed. 
Date  on  which  trial  judge  advocate  was  informed  of 

appointment  of  individual  counsel. 

Result  of  examination  in  preparing  for  trial,  and  dates  and  other 
necessary  facts  pertaining  to  each  other  incident  connected  with  the 
case,  such  as  mailing  interrogatories,  subpoenaing  witnesses,  etc. 
Date  of  trial. 

Date  and  hour  commanding  officer  was  notified  of  result  of  trial. 
(See  par.  332a,  M.  C.  M.) 

Date  and  hour  record  received  back  from  reporter. 
Date  and  hour  record  forwarded  to  appointing  authority. 
Date  of  return  to  commanding  officer  of  evidence  of  previous  con- 
victions, if  any,  to  be  so  returned. 


APPENDIX  9. 
FORMS  FOR  USE  OF  PRESIDENT  OR  LAW  MEMBER. 


FORM  I. 
FORM  OF  RULING  IN  OPEN  COURT. 

1.  Ruling  by  president  of  special  court-martial  or  by  president  of 
general  court-martial  in  absence  of  law  member,  on  any  question  aris- 
inff  during  the  trial,  except  on  (1)  a  challenge,  (2)  the  findings  of  the 
court,  and  (3)  the  sentence. 

The  ruling  may  be  substantially  in  this  form: 

It  is  the  opinion  of  the  president  that  (stating  his  opinion) 
and  such  will  be  the  ruling  of  the  court  unless  some  member 
objects.  Are  there  any  objections?  (Pausing  for  objections.) 
(If  there  are  no  objections,  add:) 

"  No  member  objecting,  the  ruling  of  the  court  is  that  the 
objection  (is  or  is  not  sustained)  and  that  the  question  (will 
or  will  not)  be  answered"  (or  whatever  the  ruling  may  be). 

If  any  member  objects,  the  court  will  close  to  consider  and 
vote  on  the  question.  (A.  W.  31,  and  par.  89,  M.  C.  If.). 

2.  Ruling  by  law  member  of  a  general  court-martial.     (Whenever 
present,  the  law  member  of  a  yeneral  court-martial  rules  in  open 
court  on  all  questions  arising  during  the  trial,  accept  on  (1)  a  chal- 
lenge, (2)  the  findings  of  the  court,  and  (3)  the  sentence.) 

It  frs  the  opinion  of  the  law  member  that  (stating  his  opinion). 
It  is  therefore  recommended  that  the  objection  be  (sustained 
or  7ioi  sustained)  and  that  the  question  (be  or  not  be)  an- 
swered. (Addressing  the  president.) 

(The  record  will  slioio  that  the  president  thereupon  announced  the 
opinion  of  the  law  member  as  the  ruling  of  the  court.  Such  announce- 
ment may  be  substantially  in  this  form:) 

Under  the  thirty-first  article  of  war  the  recommendation  of 
the  law  member  is  the  ruling  of  the  court.  Accordingly  the 
objection  is  (sustained  or  not  sustained)  and  the  question  will 
(be  or  not  be)  answered. 

3.  (If  the  ruling  by  the  laic  member  be  upon  any  question  other  than 
the  admissibility  of  evidence,  so  that  under  the  provisions  of  A.  W. 
31,  and  of  paragraphs  89  and  89a,  M.  C.  If.,  it  is  subject  to  objection 
by  a  member  of  the  court,  the  president  will  announce  the  ruling  in 
the  folloiving  form:) 

Under  the  thirty-first  article  of  war  the  opinion  and  recom- 
mendation of  the  law  member  is  made  the  ruling  of  the  court 
and  will  stand  as  such,  unless  any  member  object  thereto.  Are 
there  any  objections? 


APPENDIX  9. 

(//  no  member  objects  the  president  will  announce:) 

There  being  no  objection  the  recommendation  of  the  law  mem- 
ber is,  under  the  thirty-first  article  of  war,  the  ruling  of  the 
court,  and  the  objection  is  (sustained  or  not  sustained)  and  the 
question  will  (be  or  not  be)  answered  (or  whatever  the  ruling 
may  be). 

If,  however,  in  such  a  case,  any  member  objects  to  the  ruling,  the 
court  will  be  closed  and  proceed  to  consider  and  vote  upon  the  ques- 
tion. (See  A.  W.  81;  and  par.  89a,  M.  C.  M.) 

FORM  II. 

EXPLANATION   OF  THE   RIGHT    OF   ACCUSED   TO   PLEAD   THE 
STATUTE  OF  LIMITATIONS.     (See  Par.  149   (h),  M.  C.  M.) 

(To  be  made  by  the  president  of  a  special  court-martial,  or  by  the 
president  of  a  general  court-martial  in,  the  absence  of  the  law  member, 
or  by  the  law  member  of  a  general  court-martial  whenever  present.) 

(Private  Doe),  it  appears  on  the  face  of  these  charges  that 
the  offenses  with  which  you  are  charged  (or,  the  offenses  alleged 
in  specification  -  under  charge  -  ,  as  the  case  may 
be)  were  committed  more  than  (two  years  or  three  years) 
ago.  It,  therefore,  appears  that  if  you  wish  to  do  so  you  are 
legally  entitled  to  plead  what  is  known  as  the  statute  of 
limitations,  that  is,  that  under  the  thirty-ninth  article  of  war 
you  are  not  now  liable  to  be  tried  or  punished  therefor,  because 
of  the  time  that  has  gone  by.  If  you  take  advantage  of  your 
rights  under  the  thirty-ninth  article  of  war  by  pleading  it  at 
this  time  you  can  not  be  tried  for  such  offenses,  unless  the 
prosecution  can  show  some  legal  justification  for  the  delay  in 
bringing  you  to  trial;  but  you  do  not  have  to  take  advantage 
of  this  statutory  time  limit  unless  you  desire  to  do  so.  But, 
if  you  do  not  do  so,  and  do  not  raise  this  objection  —  that  is, 
unless  you  plead  the  statute  of  limitations,  as  it  is  called,  or 
raise  this  objection  to  being  tried  on  account  of  the  delay 
in  bringing  you  to  trial  —  this  court  will  proceed  to  try  you, 
and  if  you  should  be  found  guilty  will  have  power  to  punish 
you  for  such  offenses,  regardless  of  how  long  ago  the  offenses 
were  committed.  Do  you  understand  all  I  have  said  to  you? 


Q.  Do  you  understand  what  I  mean?  That  if  you  do  not 
take  advantage  of  this  right  you  will  lose  it? 

Q.  Knowing  your  rights,  do  you  not  want  to  object  to  this 
trial  proceeding  because  of  the  length  of  time  that  has  gone  by 
since  the  commission  of  the  acts  charged  against  you  ;  that 
Is,  do  you  not  desire  to  plead  the  statute  of  limitations? 

610 


FORMS  FOR  USE  OF  PRESIDENT  OR  LAW  MEMBER. 

FOEM  III. 
EXPLANATION  TO  THE  ACCUSED  OF  PLEA   OF  GUILTY. 

(To  be  made  by  a  summary  court  (see  par.  351  (d),  M.  C.  M.),  by 
the  president  of  a  special  court-martial,  or  by  the  president  of  a  gen- 
eral court-martial  in  the  absence  of  the  law  member,  or  by  the  law 
member  of  a  general  court-martial  whenever  present.  (See  par.  15% 
(d),  M.  C.  M.) 

Such  explanations  and  questions  may  be  in  substantially  the  fol- 
lowing form,  varied  to  suit  the  particular  charges  and  specifications; 
but  the  lain  member  or  president  will  not  confine  himself  to  a  stereo- 
typed statement  in  this  form,  but  will  in  all  cases  elaborate  it  suffi- 
ciently io  assure  himself  (as  well  as  to  make  it  appear  in  the  record) 
that  the  accused  actually  understands  all  the  essential  elements  of 
each  offense  to  which  he  has  offered  a  plea  of  guilty  and  understands 
what  the  specifications  allege,  and  also  clearly  understands  the  maxi- 
mum punishment  that  may  be  adjudged  thereon,  and  actually  com- 
prehends that  by  pleading  guilty  he  admits  having  committed  all  of 
the  various  elements  of  the  crimes  or  offenses  charged,  and  under- 
stands that  he  may,  upon  a  plea  of  guilty,  actually  be  punished  as 
stated.  The  explanation  should  include  at  least  substantially  what 
follows: 

THE  LAW  MEMBER  (or  the  president,  in  the  absence  of  the  law 
member)  : 

(Private  Doe),  it  is  my  duty  to  tell  you  that  in  pleading 
guilty  to  (Specification or  Charge ,  insert  the  num- 
ber of  the  specification  or  of  the  charge,  as  the  case  may  be) 
you  are  admitting  that  you  are  actually  guilty  of  all  of  the 
things  that  are  charged  against  you  in  that  (Specification  or 
Charge)  ;  that  is,  that  you  actually  committed  all  the  elements 
of  the  offense  charged.  Those  elements  or  parts  of  the  of- 
fense consist  of  certain  acts  committed  with  a  certain  intent. 
The  elemental  acts  charged  and  which  you  admit  by  pleading 
guilty  are  (here  read  over  the  specification  or  specifications  to 
which  the  plea  of  guilty  is  offered,  phrase  by  phrase,  each 
phrase  being  an  elemental  fact,  if  the  specification  is  properly 
drawn,  and  explain  them  carefully  in  simple  language,  making 
sure  that  the  accused  actually  understands  them.  Then  con- 
tinue:) As  to  the  intent  with  which  the  acts  were  committed, 
you  admit  by  your  plea  of  guilty  that  you  knowingly  did  these 
things ;  that  is,  you  knowingly  committed  those  acts  as  charged 
and  of  which  you  plead  guilty,  and  that  you  were  conscious  and 
knew  what  yon  were  doing  and  that  you  intentionally  com- 
mitted those  acts;  that  is,  that  you  had  the  intention  to  com- 
mit the  offense  of  (desertion,  larceny,  burglary,  etc.),  with 
which  you  stand  charged  here;  that  no  one  forced  you  to  do  it, 
or  any  part  of  it,  but  that  you  did  those  acts  all  of  your  own 

611 


APPENDIX  9. 

free  will,  not  under  any  compulsion  nor  misunderstanding  of  the 
facts  or  innocently,  but  with  the  intention  ot  committing  this 
(crime  or  offense).  (If  desertion,  add)  :  and  you  are  further 
informed  that  the  word  "  desert "  includes  the  charge  that, 
either  at  the  time  you  left  or  at  some  time  during  your  ab- 
sence, you  had  the  intention  not  to  return  to  your  proper  sta- 
tion, or  else  that  you  left  for  the  purpose  of  avoiding  hazardous 
duty  or  shirking  important  service,  as  stated  in  the  specifica- 
tions to  which  you  are  pleading  guilty;  and  you  are  further 
informed  that  the  maximum  penalty  which  the  court  may  im- 
pose upon  you  under  your  pleas  of  guilty  is  (be  sure  to  state 
all  of  the  elements  of  the  maximum  punishment  which  may  be 
awarded,  including,  if  imposable,  dishonorable  discharge,  for- 
feiture or  detention  of  pay  and  allowances,  as  well  as  confine- 
ment or  other  punishment).  (In  a  proper  case,  add:)  If  evi- 
dence is  presented  to  the  court,  which  it  can  properly  consider, 
of  five  or  more  previous  convictions  against  you,  you  may,  in 
addition,  be  dishonorably  discharged  from  the  service  and 

months'  confinement  at  hard  labor  may  be  adjudged 

against  you.  Do  you  fully  understand  all  that  I  have  said  to 
you? 


A. 


Q.  Do  you  also  fully  understand  that  by  pleading  guilty  to 

Specification (or  Charge ,  as  the  case  may  be),  you 

admit  having  committed  all  of  the  elements  of  the  crime  or 
offense  charged,  as  I  have  explained  them  to  you? 

A.  . 

Q.  Do  you  also  understand  fully  that  upon  your  plea  of  guilty 
you  may  be  punished  as  I  have  stated? 

A.  . 

Q.  You  may  either  let  your  pleas  of  guilty  stand,  or  you  may 
now,  if  you  wish,  change  them  or  any  of  them  to  "  not  guilty." 
If  you  change  them  to  "  not  guilty,"  then  the  prosecution  will 
have  to  present  the  necessary  evidence  to  prove  you  guilty 
before  the  court  can  find  you  guilty  or  punish  you. 

Now,  knowing  all  this  do  you  still  want  your  pleas  of  guilty 
to  stand,  or  do  you  want  to  change  them  or  any  of  them  to 
"  not  guilty  "  ? 

FORM  IV. 
EXPLANATION  TO  THE  ACCUSED  OF  HIS  EIGHTS  AS  A  WITNESS. 

(To  be  made  by  a  summary  court,  or  by  the  president  of  a  special 
court-martial,  or  by  the  president  of  a  general  court-martial  in  the 
absence  of  the  law  member,  or  by  the  law  member  of  a  general  court- 
martial  whenever  present;  see  par.  215,  M.  C.  M.). 

(Private  Doe),  it  is  my  duty  to  tell  you  that  you  have  the 
legal  right  now  to  do  any  one  of  several  things,  just  as  you 

612 


FORMS   FOR   USE   OF  PRESIDENT   OR  LAW   MEMBER. 

choose.  First,  if  you  want  to  do  so,  you  may  be  sworn  as  a 
witness  and  testify  under  oath  in  this  case  like  any  other 
witness ;  or  second,  if  you  do  not  want  to  be  sworn  as  a  witness 
you  may,  without  being  sworn,  say  anything  about  the  case  to 
the  court  which  you  desire — that  is,  make  what  is  called  an 
unsworn  statement — or  you  may,  if  you  wish,  file  a  written 
statement  with  the  court ;  or  third,  you  may,  if  you  wish,  keep 
silent  and  say  nothing  at  all.  I  will  explain  these  rights  to 
you  in  order: 

First.  If  you  desire  to  be  sworn  as  a  witness  and  testify  in 
your  own  behalf,  you  may  do  so,  but  you  are  not  required  to 
do  so,  and  you  can  not  be  sworn  unless  you  ask  it.  If  you  are 
sworn  as  a  witness  in  your  own  behalf  that  means  that  you  take 
the  witness  stand  like  any  other  witness  and  promise,  under 
oath,  that  you  will  tell  the  truth,  the  whole  truth,  and  nothing 
but  the  truth,  about  this  case.  If  you  do  that,  whatever  you  say 
will  be  considered  and  weighed  as  evidence  by  the  court  just 
like  the  testimony  of  any  other  witness,  and  you  can  be  cross- 
examined  like  any  other  witness — that  is,  the  trial  judge  ad- 
vocate1 and  any  member  of  the  court  can  question  you  to  find 
out  whether  or  not  you  are  telling  the  truth  and  what  weight 
should  be  given  to  your  testimony.  Their  questions  will  not  be 
confined  to  just  that  part  of  your  denial  or  explanation  which 
you  may  give  while  testifying  yourself  under  the  guidance  of 
your  counsel,  but  they  can  question  you  about  the  whole  subject 
of  the  offense  charged  against  you,  and  may  also  ask  you  ques- 
tions to  test  your  worthiness  of  belief;  (if,  as  is  usually  the 
case,  there  are  more  than  one  specification)  but  if  your  testi- 
mony should  only  be  in  denial  or  explanation  of  any  statement 
about  just  one  or  two  of  the  offenses  charged  against  you 
here,  and  not  about  the  others,  and  you  should  not  say  anything 
about  the  others,  then  they  can  question  you  about  the  whole 
subject  of  those  offenses  concerning  which  you  testify,  but  they 
can  not  question  you  about  any  offenses  concerning  which  you 
do  not  testify. 

If  you  do  take  the  witness  stand  and  fail  to  deny  or  satis- 
factorily explain  any  of  the  alleged  wrongful  acts  about  which 
you  testify  at  all,  and  about  which  any  evidence  has  been 
presented  against  you  here,  such  failure  on  your  part  may  be 
commented  on  to  the  court  by  the  trial  judge  advocate  when 
he  presents  his  argument  to  the  court  at  the  end  of  the  trial, 
and  the  court  can  take  it  into  consideration  in  determining 
whether  you  are  guilty  or  innocent  of  the  offenses.  Do  you 
understand  fully  all  that  I  have  said  to  you  so  far?  If  not, 
tell  me  and  I  will  try  to  make  it  clearer. 

A.  . 

1  Summary  court  will  omit  inapplicable  words  and  phrases. 
613 


APPENDIX  9. 

{If  the  accused  says  that  he  does  not  understand  it  fully,  or  if  he 
does  not  appear  fully  to  understand  all  that  has  been  said,  go  over  it 
attain  and  elaborate  it  until  he  does  fully  understand  it,  then  proceed:) 

Second.  Your  second  choice  is,  that  if  you  do  not  want  to 
testify  under  oath  you  may,  without  being  sworn,  say  anything 
you  desire  to  the  court  as  an  unsworn  statement,  denying, 
explaining,  or  excusing  any  of  the  acts  charged  against  you 
here.  You  can  do  this  yourself,  or  you  can  have  your  counsel 
do  it  for  you,  or  you  can  do  both;  that  is,  you  may  say  any- 
thing yon  desire  yourself  in  this  way,  and  have  your  counsel 
add  anything  else  for  you  which  you  want  him  to  do.  In 
making  such  a  statement  you  are  not  a  witness  and  do  not  have 
to  take  an  oath  and  can  not  be  questioned  or  cross-questioned 
by  anyone.  If  you  wish  you  can  file  your  statement  in  writing, 
or  have  your  counsel  file  a  written  statement  for  you,  or  you 
may  both  make  an  oral  statement  and  also  file  a  written 
statement,  if  you  want  to  do  so.  In  such  statement  you  can 
refer  to  the  evidence  produced  against  you  here  and  you  can 
explain  your  motive  in  doing  anything  you  may  have  done,  or 
you  can  deny  or  contradict  any  of  the  testimony  given  or  offer 
any  excuse  or  explanation  you  see  fit,  and  you  may  also,  if  you 
wish,  discuss  the  legal  principles  applying  to  your  case  and 
make  an  argument  to  the  court,  both  upon  the  facts  of  the 
case  and  upon  the  law.  Since  such  a  statement  is  not  given 
under  oath,  and  you  can  not  be  cross-examined  upon  it,  it  can 
not  be  given  the  same  weight  with  the  court  as  sworn  testimony 
under  oath,  but  it  will  be  considered  by  the  court  and  given 
such  weight  as  it  may  seem  to  deserve.  Furthermore,  even 
though  you  may  be  sworn  as  a  witness  you  may  also,  if  you 
wish,  afterwards  make  a  statement  of  this  kind,  not  under  oath, 
either  verbally  or  in  writing.  Do  you  understand  clearly  all 
that  I  have  said  thus  far?  If  not,  tell  me  and  I  will  explain 
it  again  and  try  to  make  it  clearer. 

A.  . 

(As  before  make  sure  that  the  accused  understands,  and  then  pro- 
ceed:) 

Third.  Your  third  choice,  if  you  do  not  want  to  testify  as 
a  witness  in  your  own  behalf,  and  do  not  desire  to  make  an  un- 
sworn statement,  either  orally  or  in  writing,  is,  if  you  so  wish, 
to  remain  silent ;  to  say  nothing  at  all.  You  have  a  perfect 
right  to  do  this  if  you  wish,  and  if  you  do  so  the  fact  that  you 
stand  on  your  legal  rights  and  do  not  take  the  witness  stand 
yourself,  or  make  any  statement,  will  not  count  against  you 
in  any  way  with  the  court.  It  will  not  be  considered  by  the 
court  as  any  admission  that  you  are  guilty,  nor  can  it  be  com- 
mented on  in  any  way  by  the  trial  judge  advocate  in  addressing 
the  court.  It  is  your  legal  right  to  remain  silent  if  you  wisli 

614 


FORMS  FOR  USE  OF  PRESIDENT  OR  LAW  MEMBER. 

to  do  so.     Do  you  now  understand  all  that  I  have  said?     If  not, 
tell  me  and  I  will  explain  it  more  fully  and  try  to  make  it  clear 
to  you? 
A    — — 

(Make  sure  as  before  that  the  accused  fully  understands,  then  pro- 
ceed:) 

Q.  Do  you  understand  now  your  right  to  do  any  one  of 
these  different  things  as  I  have  explained  them1  to  you ;  that  is, 
first,  to  testify  as  a  witness,  if  you  wish ;  second,  to  make  an 
unsworn  statement,  either  verbally  or  written,  as  you  wish, 
or  hoth,  either  without  having  been  sworn  as  a  witness  or  in 
addition  to  your  testimony  if  you  shall  be  sworn;  and  third, 
your  right  to  remain  silent  and  say  nothing  at  all? 

Knowing  these  various  rights,  take  time  to  consult  with  your  coun- 
^el  and  then  state  to  the  court  which  you  will  do. 


615 


APPENDIX  10. 

FORM  FOR  RECORD  OF  TRIAL  BY  GENERAL 
COURT-MARTIAL,  AND  REVISION  PROCEED- 
INGS. 

Record  of  Trial  by  General  Court-martial *  of 

PBIVATE ,  A.  S.  No. ,  COMPANY , INFANTRY. 


INDEX. 


Page. 


Arraignment 

Pleas 

Statement  by  accused 

Address  by  counsel 

Reply  by  trial  judge  advocate- 
Findings  

Previous  convictions  submitted. 

Sentence   (or  acquittal) 

Proceedings  in  revision 


TESTIMONY. 


Name  of  witness. 

Direct. 

Cross. 

Redirect. 

Exam- 
ination 
by  court. 

Recalled. 

Page. 

Page. 

Page. 

Page. 

Page. 

1  See  "  Courts-martial,  Records  of  trial,  Chap.  XV."  The  record  will  be 
clear  and  legible  and,  if  practicable,  without  erasure  or  interlineation. 

Erasures  or  interlineations  will  be  authenticated  by  the  initials  of  the  trial 
judge  advocate  or  of  the  president,  or,  in  a  proper  case,  of  the  assistant  trial 
judge  advocate. 

The  pages  of  the  record  will  be  numbered  at  the  bottom,  and  margins  of 
1  inch  will  be  left  at  the  top,  bottom,  and  left  side  of  each  page. 


616 


RECORD   OF   TRIAL  BY   GENERAL   COURT-MARTIAL. 
EXHIBITS. 


Number. 

Page 
where  in- 
troduced. 

Deposition  of  Capt.  . 

D  eoosition  of  P  v  t.  

Letterof            

Knife     .                                                                         

!not  desired  by  accused  | 
and  forwarded  here- 1  Receipt  (or)  \  Attached  to 

with  a  |  Affidavit  of  delivery./     record, 

furnishe^  the  accused] 


Proceedings  of  a  general  court-martial  which  convened  at 
,  pursuant  to  the  following  order  (or  orders)  : 


(Here  insert  a  literal  copy  of  the  order  appointing  the  court  and, 
foUoiwng  it,  copies  of  any  orders  modifying  the  detail.)3 

Fort  -     — , , 

-jo 

,     —  ,     -Lt>         . 

The  court  met  pursuant  to  the  foregoing  order  (or  orders)  at 

o'clock  — . 


Col.  -  ,  5th  Cavalry. 
Lieut.  Col.  -  ,  1st  Infantry. 
Lieut.  Col.  -  ,  3d  Field  Artillery. 
f  j.  A.  G.  D.,  law  member. 


Mnj.  —   —  ,  3d  Field  Artillery. 

Capt.  -  ,  4th  Infantry. 

Capt.  -  ,  5th  Cavalry. 

Capt.  -  ,  5th  Cavalry,  trial  judge  advocate. 

First  Lieut.  -  ,  3d  Field  Artillery,  assistant  trial  judge  advocate. 

Capt.  -  ,  4th  Infantry,  defense  counsel. 

Gapt.  —   —  ,  4th  Infantry,  assistant  defense  counsel. 

«  A  carbon  copy  will  always  be  prepared  whenever  the  record  is  to  be  type- 
written by  a  reporter.  (See  pars.  355a,  357  (b),  and  366  (b),  M.  C.  M.) 

2  Line  out  Inappropriate  words. 

9  Words  in  italics  will  not  be  copied  into  the  record. 

*  In  the  record  of  the  proceedings  of  a  court-martial  at  its  organization  for 
the  trial  of  a  case  the  officers  detailed  as  members  (including,  and  so  designat- 
ing, the  law  member),  trial  judge  advocate,  assistant  trial  judge  advocate, 
defense  counsel  and  assistant  defense  counsel,  will  be  noted  by  name  as 
present  or  absent.  In  the  record  of  the  proceedings  of  subsequent  sessions  In 
the  same  case  (except  in  proceedings  in  revision)  the  following  form  of  words 
will  be  used,  subject  to  such  modification  as  the  facts  may  require  :  "  Present, 
all  the  members  of  the  court,  the  trial  judge  advocate,  the  assistant  trial 
judge  advocate,  the  defense  counsel,  and  the  assistant  defense  counsel." 


617 


APPENDIX  10. 

ABSENT.* 

Capt. ,  1st  Infantry  (detached  service). 

Gapt. ,  3d  Field  Artillery  (leave  of  absence). 

The  court  proceeded  to  the  trial  of  Private  -  — ,  Array  Serial 
Number ,  Company  -  — ,  —  —  Infantry,  who,  on  appearing  be- 
fore the  court  (introduced  as  his  individual  counsel)  or 

(stated,  upon  being  asked  by  the  defense  counsel  in  open  court,  that 
he  did  not  desire  to  introduce  any  individual  counsel,  and  was  de- 
fended by  the  defense  counsel). 

was  sworn  as  reporter. 

(If  an  interpreter  is  to  be  used  lie  should  be  sworn  ivhen  his  services 
are  required.) 

The  order  appointing  the  court  (and  tfce  order  or  orders  modifying 
the  detail,  if  any)  was  (or  were)  read  to  the  accused. 

Capt.  ,  4th  Infantry,  announced  that  he  was  the  accuser  in 

the  case  and  was  excused  and  withdrew. 

(Insert  here  any  challenge  by  ihe  trial  judge  advocate,  and  the 
action  thereon;  see  par.  120,  M.  C.  M.) 

The  accused  was  asked  if  he  objected  to  being  tried  by  any  member 
present  named  in  the  order  or  modifying  orders  appointing  the  court, 
or  desired  to  exercise  his  right  to  one  peremptory  challenge  against 
any  member  except  the  law  member;  to  which  (after  being  in  open 
court  advised  of  his  right  to  do  both  or  either,  if  he  desired)  he  replied 
in  the  negative;  or 

Defense:  (Insert  statement.) 

(In  case  of  a  peremptory  challenge  by  either  side  the  challenged, 
member  will  be  excused  by  the  president  and  forthwith  withdraw. ) 

(Except  in  case  of  a  peremptory  challenge  insert  the  statement  of 
the  challenged  member,  who  ordinarily  should  respond  to  the  challenge 
by  briefly  admitting  or  denying  the  grounds  of  the  challenge.  Should 
the  accused,  after  the  statement,  desire  to  call  upon  the  member  to 
testify  as  to  his  competency,  the  record  should  continue:) 

The  accused  having  requested  that  the  challenged  member  be  sworn 

as  to  his  competency  to  act  as  a  member  of  the  court, was 

sworn  by  the  trial  judge  advocate,  and  testified  as  follows : 

(Evidence  pro  and  con  may  be  introduced,  and,  except  in  cases 
where  the  member  is  the  accuser  or  a  witness  for  the  prosecution, 
and  such  fact  is  admitted,  challenges  which  are  not  withdrawn  must 
be  passed  upon  by  the  court.  In  such  case  the  record  ivill  proceed:) 

The  challenged  member  withdrew,  the  court  was  closed  and  voted 
upon  the  challenge  by  secret  written  ballot,  and,  upon  being  opened, 

•  A  member  of  a  court-martial,  or  a  defense  counsel,  who  knows,  or  has 
reason  to  believe,  that  he  will,  for  proper  reason,  be  absent  from  a  session  of  the 
court,  will  inform  the  trial  judge  advocate  accordingly.  When  a  member  of  a 
court-martial,  or  a  defense  counsel,  is  absent  from  a  session  thereof,  the  trial 
Judge  advocate  will  cause  that  fact,  together  with  the  reason  for  such  absence, 
if  known  to  him,  to  be  shown  in  the  record  of  the  proceedings.  If  the  reason 
for  such  absence  is  not  known  to  the  trial  judge  advotate,  he  will  cause  the 
record  to  show  the  member  as  absent,  cause  unknowo. 

618 


RECORD  OF  TRIAL  BY  GENERAL  COURT-MARTIAL. 

the  president  announced  in  the  presence  of  the  trial  judge  advocate, 
the  assistant  trial  judge  advocate,  the  defense  counsel  and  the  assist- 
ant defense  counsel,  the  accused  and  individual  counsel,  if  any,  for 
the  accused,  that  the  challenge  was  (not  sustained)  or  (sustained}. 

(If  the  challenge  is  sustained:)  then  withdrew. 

The  accused  was  asked  if  he  objected  to  any  other  member  present, 
to  which  he  replied  in  the  negative,  or 

Defense : 

(Insert  objection — or  peremptory  challenge,  as  the  case  may  be — m 
full  in  the  record,  and  continue  as  before  until  accused  replies  in  the 
negative.) 

The  members  of  the  court,  the  trial  judge  advocate,  and  the  as- 
sistant trial  judge  advocate  were  then  sworn. 

(A  nolle  proscqwi  may  be  entered  either  before  or  after  arraignment 
and  plea;  par.  15S,  M.  C.  M.)  (The  foUou'iny  form  may  be  used:) 

Prosecution:  By  direction  of ,  the  officer  who  ordered  this 

court,  the  prosecution  withdraws  the  following  charges  and  specifica- 
tions and  will  not  pursue  the  same  further  at  the  present  trial. 

(If  delay  is  desired,  request  should  now  be  made  and  the  proceedings 
recorded.  If  no  continuance  is  requested,  the  record  should  continue:} 

The  accused  was  then  arraigned  upon  the  following  charges  and 
specifications : 8 

CHARGE  I :  Violation  of  the Article  of  War. 

Specification:  In  that,  etc. 

CHARGE  II :  Violation  of  the  —     —  Article  of  War. 

Specification  1:  In  that,  etc. 

Specification  2:  In  that,  etc. 

(Signature  of  accuser) 

(Name  and  grade.) 

(Organization  and  corps,  service  or  department) 


AFFIDAVIT.3 

Before  me,  the  undersigned,  authorized  by  law  to  administer 
oaths  in  cases  of  this  character,  personally  appeared  the  above- 
warned  accuser  this  day  of  ,  19 — ,  and,  made 

6  All  words  that  precede  the  charge  proper  are  not  parts  of  the  charges 
and  will  not  ~be  copied  into  the  record,  but  the  name,  grade,  and  organization 
of  the  person  subscribing  the  charges  and  the  affidavit  thereto,  and  the  order 
of  reference  for  trial,  will  be  copied  fnto  the  record  after  the  charges  and 
specifications. 

0  (1)  At  (*)  strike  out  words  not  applicable. 

(2)  If  the  accuser  has  personal  knowledge  of  the  facts  stated  in  one  or  more 
specifications  or  parts  thereof,  and  his  knowledge  as  to  other  specifications  or 
parts  thereof  is  derived  from  investigation  of  the  facts,  the  form  of  the  oatli 
will  be  varied  accordingly.     In  no   case  will  he  be  permitted  to  state  alter- 
natively,   as    to   any   particular   charge   or    specification,    that  he   either   has 
personal  knowledge  or  has  investigated.      (See  note  to  par.  75,  M.  C.  M.) 

(3)  If  the  oath  is  administered  by  a  civil  officer  having  a  seal,  his  official 
seal  should  be  affixed. 

619 


APPENDIX  10. 

oath  that  he  is  a  person  subject  to  military  law  and  that  he  per- 
sonally signed  the  foregoing  charges  and  specifications,  and  further 
that  he  *  has  personal  knowledge  of  the  matters  set  forth  In 

specifications ;  and  *  has 

(Indicate  by  specification  and  charge  numbers.) 

investigated  the  matters  set  forth  in  specifications 

(Indicate 

,  and  that  the  same  are  true 


by  specification  and  charge  numbers.) 
in  fact,  to  the  best  of  his  knowledge  and  belief. 
(Name) 


(Rank  and  organization.) 


(Official  character,  as  summary  court,  notary  public,  etc.) 

(Copy  in  here  also — showing  that  it  was  read  to  the  accused  as  a 
part  of  the  arraignment — the  order  referring  the  case  for  trial.) 

(In  the  case  of  a  plea  to  the  jurisdiction  or  of  the  statute  of  limi~ 
tations,  or  other  special  plea,  the  record  will  show  it  fully  and  the 
action  thereon,  after  which  it  will  show  the  pleas  on  the  general  issue 
[guilty  or  not  guilty].) 

The  accused  then  pleaded  as  follows: 

To  the  Specification,  Charge  I :  Guilty  or  Not  guilty. 

To  Charge  I :  Guilty  or  Not  guilty. 

To  Specification  1,  Charge  II :  Guilty  or  Not  guilty. 

To  Specification  2,  Charge  II :  Guilty  or  Not  guilty. 

To  Charge  II :  Guilty  or  Not  guilty. 

The  following  paragraphs  or  parts  of  paragraphs  of  the  Manual  for 
Courts-Martial  that  set  out  the  gist  of  each  of  the  several  offenses 
charged  were  read  to  the  court  by  the  trial  judge  advocate,  to  wit : — 

(If  it  appears  upon  the  face  of  the  charges  that  the  accused  might 
successfully  plead  the  statute  of  limitations  thereto,  or  to  any  specifi- 
cation or  charge,  but  has  not  interposed  such  a  plea,  the  record  will 
show  at  this  point  that  the  law  member,  if  present — or  in  the  absence 
of  the  law  member  the  president — advised  the  accused  of  his  legal 
rights  in  the  premises  (par.  149  (h),  H.  G.  M.)t  and  such  advice  and 
the  response  of  the  accused  thereto  will  appear  in  full  in  the  record  at 
this  point.  Such  advice  may  be  substantially  in  the  form  set  forth 
in  Appendix  9,  Form  II.) 

(In  case  the  accused  pleads  guilty  in  whole  or  in  part  to  any  charge 
or  specification,  the  record  will  show  that  the  laio  member,  if  present, 
or  in  his  absence  the  president  of  the  court,  made  to  the  accused  the 
explanation  and  asked  him  the  questions  required  by  paragraph  15 £ 
(d),  H.  C.  M.,  and  the  answers  of  the  accused  to  such  questions. 
Such  explanations  and  questions  may  be  substantially  in  the  form  set 
forth  in  Appendix  9,  Form  HI.) 

(If  the  accused  then  abides  by  a  plea  of  guilty,  the  trial  judge  advo- 
cate icill  formally  advise  him  in  open  court  of  his  right  to  introduce 
evidence  in  explanation  or  extenuation  of  his  offense  and  should  assist 


620 


RECORD   OF  TRIAL  BY  GENERAL  COURT-MARTIAL. 

him  and  the  defense  counsel  and  any  other  counsel  for  the  accused  in 
securing  it;  par.  96,  M.  C.  M.) 

(The  opening  statement  of  the  trial  judge  advocate  will  be  inserted 
in  the  record  at  this  point.) 

Sergt.  John  Jones,  Company  -  ,  -  Infantry,  a  witness  for 
the  prosecution,  was  sworn  and  testified  as  follows  : 

Q.  Do  you  know  the  accused?    If  so,  state  who  he  is. 

A.  I  do  ;  Private  -  . 

Q.  Is  he  in  the  military  service  of  the  United  States? 

(If  accused  is  not  in  the  military  service  of  the  United  States,  show 
how  otherwise  subject  to  military  laiv.) 

Q.  What  is  his  grade  and  organization  ? 

A    —  —  —  — 

Q.  What  is  his  Army  serial  number?1 

A.  -  . 

(The  succeeding  questions  of  the  prosecution  and  their  answers 
should  follow  in  order.)* 

CBOSS-EXAMINATION. 

Questions  by  defense: 
Q.  -  ? 


(//  the  defense  declines  to  cross-examine  the  witness  the  record 
should  state:) 
The  defense  declined  to  cross-examine  the  witness. 

KEDIRECT  EXAMINATION. 

Questions  by  prosecution: 
Q.  -  ? 

KECEOSS   EXAMINATION. 

Questions  by  defense  : 
Q.  -  ? 
A.  -  . 

Q.  -  ? 

Prosecution:  (Insert  objection.) 

Defense:  (Insert  reply,  etc.) 

The  law  member  (or  the  president  in  the  absence  of  the  Taw  mem- 
ber) ruled  (insert  here  ruling  in  full).  (See  Appendix  9,  Form  7, 
pars.  2  and  3.) 

7  It  is  not  necessary  to  ask  every  witness  as  to  the  serial  number  of  the 
eccused.  But  it  should  be  established  by  the  testimony  of  one  witness,  at 
least,  who  knows  it. 

&  The  record  should  set  forth  fully  all  the  testimony  introduced  upon  the 
trial,  the  oral  portion  as  nearly  as  practicable  in  the  precise  words  of  the 
witness.  If  the  court  should  decide  to  strike  out  any  part,  it  will  not  be 
literally  stricken  out  or  omitted  from  the  record,  but  will  not  be  thereafter 
considered  as  part  of  the  evidence. 

21358°—  20  -  40  621 


APPENDIX  10. 

(If  the  ruling  by  the  law  member  be  upon  any  question  other  than 
the  admissibility  of  evidence,  so  that  under  tlie  provisions  of  A.  W. 
St,  and  of  paragraphs  89  and  89a,  M.  C.  M.,  it  is  subject  to  objection 
by  a  member  of  the  court,  and  in  such  case  a>ny  member  objects  to 
the  ruling,  the  court  will  be  closed  and  proceed  to  consider  and  vote 
upon  the  question.)  (See  A.  W.  SI;  and  par.  89a,  M.  C.  M.,  and 
Appendix  9,  Form  I,  par.  S.) 

(If  the  ruling  be  by  the  president  in  the  absence  of  the  law  member, 
the  record  icill  read:) 

"The  president  (in  the  absence  of  the  law  member)  ruled  (insert 
here  the  ruling  in  full)"  (See  Appendix  9,  Form  I,  par.  1.) 

(If  any  member  objects  to  any  ruling  by  the  president,  the  court 
will  close  to  consider  and  vote  on  the  question.)  (A.  W.  31,  and  par. 
89,  M.  C.  M.) 

(Whenever  the  court  closes  to  vote  on  any  question,  except  on  a 
challenge,  on  the  findings,  or  on  the  sentence,  upon  opening  the  record 
will  continue:) 

The  court  was  closed,  and  upon  being  opened,  the  president,  in  the 
presence  of  the  accused  and  his  counsel,  announced — 

(If  the  objection  is  not  sustained  the  record  will  continue  as  m  a 
case  where  there  is  no  objection.  If  the  objection  is  sustained  there 
will  be  no  further  entry  about  the  matter  of  that  objection.) 

(If  the  objection  be  by  the  defense  or  a  member  of  the  court  the 
record  will  proceed  in  a  corresponding  way.) 

EXAMINATION    BY  THE  COURT. 
Q.   ? 

(//  the  court  considers  it  necessary  to  hear  the  testimony  of  a 
icitncss  read,  or  the  witness  desires  to  have  any  part  of  his  testimony 
read  for  correction,  the  record  will  show  that  fact  and  the  correc- 
tions, if  any.) 

(After  the  proper  foundation  for  the  introduction  of  a  icriting  is 
laid,  the  record  will  continue:) 

Prosecution:  "I  offer  in  evidence  the (describing  the  writing 

or  other  proposed  exhibit)." 

Defense:  (Insert  his  reply.)  (If  there  is  no  objection  the  record 
will  continue:) 

The  paper  (or  oilier  proposed  exhibit)  was  then  received  and  read 
in  evidence  and  marked  exhibit .* 

•  All  documents  and  papers  made  part  of  the  proceedings,  or  copies  of  them, 
will  be  securely  fastened  (6«f  not  pasted)  to  th«  record,  in  the  order  of  their 
introduction,  after  the  space  left  for  the  remarks  of  the  reviewing  authority, 
and  marked  "  1,"  "  2,"  "  3,"  etc.,  so  as  to  afford  easy  reference.  Documents  or 
other  writings,  or  matter  excluded  by  the  court  will  not  ordinarily  be  appended 
to  the  record,  except  documents  excluded  and  marked  for  identification,  but 
the  record  should  simply  specify  the  character  of  the  writings  and  the  grounds 
upon  which  they  were  ruled  out. 


RECORD  OF  TRIAL  BY  GENERAL  COURT-MARTIAL. 

(If  there  is  objection,  the  record  will  continue  by  stating  any  fur- 
ther remarks  of  the  prosecution:)  (Show  ruling  d%  outlined  above.) 

(If  it  is  the  defense  that  seeks  to  introduce  the  writing,  the  record 
will  proceed  in  a  corresponding  manner,  except  that  if  the  objection 
to  the  paper  be  sustained  the  defense  coun-sel  or  counsel  for  the 
accused  may,  if  he  thinks  the  ruling  of  the  court  wrong,  and  con- 
siders it  material  to  the  rights  of  the  accused  that  the  paper  should 
be  brought  to  the  attention  of  the  reviewing  authority,  ask  that  the 
paper  be  marked  for  identification  and  appended  to  the  record,  in 
which  case  the  paper  w-ill  be  marked  with  the  initials  of  the  trial 
judge  advocate  and  appended  to  the  record  as  a  "  paper  marked  for 
identification." ) 

(At  the  close  of  the  prosecution,  the  record  will  continue:) 

"  Prosecution  :  The  prosecution  rests." 

(If  upon  the  close  of  the  case  for  the  prosecution  or  at  any  time 
therafter  during  the  trial,  before  the  close  of  the  evidence  the  court 
should  under  the  provisions  of  par.  158c,  M.  C.  M.,  consider  whether 
the  evidence,  introduced  by  the  prosecution,  or  before  the  court,  is 
legally  sufficient  to  support  a  finding  of  guilty  either  as  to  all  of  the 
specifications  and  charges  before  the  court,  or  as  to  any  particular 
one  or  more  thereof,  such  question  wiU  be  determined,  in  the  first 
instance,  by  the  law  member  of  the  court,  if  any,  or  if  there  be  no 
law  member  of  the  court,  then  by  the  president,  by  his  ruling  in  open 
court  upon  the  question.)  (Insert  here  ruling  in  full.)  (A.  W.  31.) 

(If,  however,  in  such  a  case,  any  member  of  the  court  objects  to  such 
ruling,  the  court  will  close  and  vote  by  secret  written  ballot  on  the 
question.)  (A.  W.  81,  and  par.  158c,  M.  C.  M.) 

(If  the  court  should  so  determine  that  the  evidence  then  before  the 
court  in  favor  of  the  prosecution  is  not  legally  sufficient  to  sustain  the 
specifications  and  charges,  or  any  particular  one  or  more  thereof,  then, 
in  any  such  case,  the  court  will  forthwith  direct  and  the  president  will 
on  the  opening  of  the  court  announce  in  open  court  a  finding  of  not 
guilty,  either  of  all  the  specifications  and  charges,  or  of  such  particular 
specification  and  charges,  if  any,  as  the  court  shall  so  find  not  to  be 
supported  by  legally  sufficient  evidence.) 

(If  the  court  adjourns  to  meet  another  day,  the  record  should  con- 
tinue:) 

"  The  court  then,  at  —  —  o'clock  — .  m.,  on ,  19 — ,  adjourned 

to  meet  at o'clock  — .  m.,  on . 

Captaint  5th  Cavalry,  Trial  Judge  Advocate, 


C23 


APPENDIX   10. 

Fort,  -     — ,  ,  19 — . 

The  court  met,  pursuant  to  adjournment,  at o'clock  — .  in. 

Present : 

All  the  members  of  the  court,  the  trial  judge  advocate,  the  assistant 
trial  judge  advocate,  the  defense  counsel  and  the  assistant  defense 
counsel. 

(The  record  also  should  shoiv  the  names  of  all  absentees,  if  any — in- 
cluding those  absent  at  preceding  sessions;  the  cause  of  absence  of 
each  absent  member  shall  appear  in  the  record.) 

The  accused,  his  individual  counsel  (if  any),  and  the  reporter  were 
also  present. 

(If  the  proceedings  of  the  previous  day  are  required  to  be  read,  that 
fact  will  be  recorded  in  the  following  form:) 

The  proceedings  of were  read  and  approved  or  corrected,  as 

follows:  (Date.) 

(In  the  latter  case  enumerate  corrections  for  insertion  in  the  record 
at  this  point,  giving  page  and  line  on  which  they  occur;  and  then  indi- 
cate them  in  their  proper  places  on  the  face  of  the  record,  the  trial 
judge  advocate  initialing  each  place.) 

(Insert  at  this  point  the  opening  statement  of  the  defense  counsel  or 
counsel  for  the  accused  in  full.) 

Corpl.  John  Smith,  Company , Infantry,  a  witness  for 

the  defense,  was  sworn  and  testified  as  follows : 

QTTESTION    BY   THE   TRIAL   JUDGE   ADVOCATE. 

Q.  Do  you  know  the  accused?    If  so,  state  who  he  is. 
A.  I  do ;  Private . 

QUESTIONS   BY   THE   DEFENSE. 

Q.  ? 

(The  succeeding  questions  of  the  defense  and  their  answers  should 
follow  in  order.) 

CROSS-EXAMINATION. 

Questions  by  prosecution: 
Q.  ? 

REDIRECT    EXAMINATION. 

Questions  by  defense: 

Q.  ? 

A.  . 

(Should  the  accused  test.ify  in  his  own  behalf  the  record  will  con- 
tinue:) 

EXAMINATION   OF  THE  ACCUSED. 

The  accused,  at  his  own  request,  was  sworn  and  testified  as  follows : 
Questions  by  defense: 

Q. ? 

A.  . 

624 


RECORD  OF  TRIAL  BY  GENERAL  COURT-MARTIAL. 

CROSS-EXAMINATION. 

Questions  by  prosecution : 
Q.  ? 

REDIRECT   EXAMINATION. 

Questions  by  defense : 

Q.  -      -? 

A.  . 

(Should  the  accused  make  an  unsworn  oral  statement,  it  will  be 
inserted  in  full.) 

(If  the  accused  does  not  testify  or  make  any  statement  in  his  own 
behalf,  the  record  will  show  at  this  point  the  explanation  of  his  rights 
and  the  questions  asked  him  by  the  law  member  (or,  in  the  absence  of 
the  law  member,  the  president)  as  required  by  par.  215,  M.  C.  M.,  and 
his  answers  thereto.)  (Sec  Appendix  9,  Form  IV.) 

(If  the  defense  offers  no  other  witness,  the  record  should  co-ntinue:) 

The  defense  had  no  further  testimony  to  offer  and  no  statement  to 
make  or  having  no  further  testimony  to  offer,  made  the  following 
oral  statement, 

Or,  having  no  further  testimony  to  offer,  submitted  a  written  state- 
ment, which  was  read  to  the  court,  and  is  hereto  appended  and 
marked .30 

Or,  requested  until o'clock  — .  m.,  to  prepare  his  defense. 

(//  the  court  takes  a  recess  during  the  time  asked  for,  the  record 
will  continue:) 

The  court  then  took  a  recess  until  -  —  o'clock  — .  m.,  at  which 
hour  the  members  of  the  court,  the  trial  judge  advocate,  the  assistant 
trial  judge  advocate,  the  defense  counsel,  the  assistant  defense 
counsel,  the  accused,  his  individual  counsel  (if  any),  and  the  reporter 
resumed  their  seats. 

(Or,  if  the  court  has  other  business  before  it,  the  record  may 
continue:) 

The  court  then  proceeded  to  other  business,  and  at  o'clock 

— .  m.  resumed  the  trial  of  this  case,  at  which  hour,  etc. 

Defense:  (Insert  statement.) 

-Or,  the  defense  read  to  the  court  a  statement,  which  is  hereto 
appended  and  marked  —    — . 

The  prosecution:  (Insert  statement.) 

Or,  the  prosecution  read  to  the  court  a  statement,  which  is  hereto 
appended  and  marked  -  — . 

The  court  was  closed,  and  upon  secret  written  ballot,  two-thirds 
of  the  members  present  at  the  time  the  vote  was  taken  concurring  in 
each  finding  of  guilty  (if  any),  finds  the  accused: 

10  The  statement  of  the  accused,  or  argument  in  his  defense,  and  all  pleas  to 
the  jurisdiction,  in  bar  of  trial,  or  in  abatement,  when  in  writing,  should  be 
sijrned  by  the  accused  himself,  referred  to  in  proceedings  as  having  been  sub- 
mitted by  him,  and  appended  to  the  record. 

625 


APPENDIX  10. 

Of  the  Specification,  Charge  I :  Guilty  or  Not  guilty. 

Of  Charge  I :  Guilty  or  Not  guilty. 

Of  Specification  1,  Charge  II:  Guilty,  except  the  words  ** 


substituting  therefor  the  words  " " ;  of  the  excepted  words, 

"  Not  guilty  "  and  of  the  substituted  words  "  Guilty." 

Of  Specification  2,  Charge  II :  Guilty  or  Not  guilty. 

Of  Charge  II:  Guilty  or  Not  guilty;  or  Not  guilty,  but  guilty  of 
violation  of  the Article  of  War. 

(If  the  accused  is  found  not  guilty  upon  all  specifications  and 
charges,  the  record  will  continue:) 

The  court  was  opened,  and,  in  the  presence  of  the  accused  and  his 
counsel,  the  president  announced  in  open  court  that  the  accused  was 
acquitted  upon  all  specifications  and  charges. 

(In  case  of  a  finding  of  guilty  upon  a  specification  charging  an 
offense  for  which  the  death  penalty  is  made  mandatory  by  law,  or 
upon  the  charge  under  which  such  specification  is  laid,  the  record  will 
shoio  at  this  point  that  all  the  members  of  the  court  present  at  the 
time  the  vote  was  taken  concurred  therein.) 

(If  the  accused  is  found  guilty,  the  record  should  continue:) 

The  court  was  opened  and  the  trial  judge  advocate  stated,  in  the 
presence  of  the  accused  and  his  counsel,  that  he  had  no  evidence  of 
previous  convictions  to  submit. 

Or,  read  the  evidence  of  previous  convictions"  (copies  of 

which  are  hereto  appended  and  marked  "4,"  "5,"  etc),  or  (the 
accused  having  first  stated  that  he  did  not  object  to  the  fairjiess  or 
correctness  of  the  summaries,  from  the  service  record  of  the  accused, 

synopses  of  previous  convictions,  as  follows:  -  — ),  and 

thereupon  asked  the  accused  whether  the  evidence  of  such  previous 
convictions  was  correct^  and  whether  he  had  any  statement  to  make  in 
explanation  or  extenuation  thereof,  or  in  relation  thereto,  to  which 
the  accused  answered . 

Thereupon  the  trial  judge  advocate  read  to  the  accused  the  state- 
ment of  accused's  service,  as  shown  on  the  charge  sheet,  and  asked 
him  whether  it  was  correct,  and  whether  he  had  any  statement  or 
correction  to  make  concerning  it,  to  which  the  accused  answered 

The  court  was  closed,  and  upon  secret  written  ballot  sentences  the 

accused  to  (%or  %  or  all)  of  the  members  present  at  the 

time  the  vote  was  taken,  concurring.  See  A.  W.  4$,  and  pars.  29Jf  and 
808,  M.  C.  M.) 

The  court  was  opened,  and  in  the  presence  of  the  accused  and  his 
counsel  the  president  announced  the  findings  and  sentence  in  open 
court." 

11  For  form  of  evidence   of   previous   conviction,   see   par.   306,   M.   C.    M. 
"  To  be  omitted  in  those  rare  cases  where  under  the  provisions  of  par.  332a, 
M.  C.  M.,  the  court  directs  that  the  sentence  be  not  announced  in  open  court. 


626 


RECORD  OF  TRIAL  BY  GENERAL  COURT-MARTIAL. 

The  court  then,  at  — .  m.,  proceeded  to  other  business. 

Or,  adjourned  until  — .  m.,  the  instant. 

Or,  adjourned  to  meet  at  the  call  of  the  president. 

•  ~~~i 

Colonel,  5th  Cavalry,  President. 


Captain,  5th  Cavalry,"  Trial  Judge  Advocate." 
(At  least  two  blank  sheets  will  be  inserted  after  the 
and  before  the  exhibits  for  the  decision  and  orders  of  the  reviewing 
authority.) 

BINDING  AND  BRIEF. 

(The  papers  forming  the  complete  record,  together  with  those  re- 
quired to  be  appended  thereto  (see  clause  56  of  subpar.  (&),  par.  357, 
M.  C.  M.),  will  be  securely  bound  together  at  the  top,  leaving  a  margin 
of  at  least  2%  inches  at  the  top  of  each  page  (easily  removed 
clips  or  paper  fasteners  will  not  be  used)  and  briefed  on  the  back, 
as  follows: 

Private ,  A.  S.  No.  

Company , Infantry. 

Trial  by  General  Court-MartiaL 
FORM  FOR  REVISION  OF  RECORD." 

Fort . 


-,  19—. 


The  court  reconvened  at  o'clock  — .  m.,  pursuant  to  the  fol- 
lowing indorsement: 

(Insert  copy  of  indorsement.) 


TEESENT. 


Col.  -      — ,  5th  Cavalry. 

Lieut.  Col.  ,  1st  Infantry. 


13  In  case  of  the  death,  disability,  or  absence  of  the  president  or  the  trial 
judge  advocate,  gee  A.  W.  33  and  par.  357b,  M.  C.  M.  When  the  record  is 
completed  the  trial  judge  advocate  will  forward  it  without  delay  to  the  ap- 
pointing authority. 

11  In  those  rare  cases  in  which,  under  par.  332a,  M.  C.  M.,  the  court  has 
directed  that  the  sentence  be  not  announced  in  open  court,  if  the  trial  judge 
advocate  records  the  findings  and  sentence  by  the  use  of  a  typewriter  medium, 
he  will  certify  immediately  after  the  authentication  of  the  record  as  follows  : 
"  I  certify  that  I  recorded  the  findings  and  sentence  of  the  court." 

16  See  "  Record  of  revision,"  par.  357,  supra.  The  court  is  usually  recon- 
vened by  indorsement  on  the  charges  returning  them  to  the  president  of  the 
court  with  the  directions  of  the  appointing  authority. 

« The  record  should  show  the  name  of  each  member  of  the  court  present 
during  the  proceedings  in  revision.  Care  must  be  taken  that  no  member  of 
the  detail  for  the  court  is  present  except  those  who  were  present  at  the  former 
proceedings  and  voting  on  the  original  findings  and  sentence. 


627 


APPENDIX  10. 

Lieut.  Col.  ,  3d  Field  Artillery. 

Maj.  ,  J.  A.  G.  D.,  law  member. 

Maj.  ,  3d  Field  Artillery. 

Capt. ,  5th  Cavalry.     . 

Capt. ,  5th  Cavalry,  trial  judge  advocate. 

First  Lieut.  ,  3d  Field  Artillery,  assistant  trial  Judge  advo- 
cate. 

Capt.  ,  4th  Infantry,  defense  counsel. 

Capt.  ,  4th  Infantry,  assistant  defense  counsel. 

ABSENT. 

Capt.  —  — ,  1st  Infantry  (detached  service). 

Capt. ,  3d  Field  Artillery  (leave  of  absence). 

Capt.  -  — ,  4th  Infantry  (did  not  participate  in  findings  or  sen- 
tence). 

(Insert  names  of  absentees  and  state  cause  of  absence,  if  knoivn.) 

The  trial  judge  advocate  read  to  the  court  the  foregoing  indorsement 
of  the  convening  authority.11 

The  court  was  closed  and  revokes  its  former  findings  and  sentence, 
and  by  secret  written  ballot,  two-thirds  of  the  members  present  at  the 
time  the  vote  was  taken  concurring  in  the  findings  of  guilty  (if  any), 
finds  the  accused,  etc. 

Or,  revokes  its  former  sentence  and  by  secret  written  ballot,  etc., 
sentences  the  accused,  etc.     (See  A.  W.  40,  and  pars.  3o2  and  864, 
M.  C.  M.) 
(See  A.  W.  40,  and  pars.  352  and  364,  M.  C.  H.) 

Or,  amends  the  record  by,  etc. 

The  trial  judge  advocate  and  assistant  trial  judge  advocate  and  the 
defense  counsel  and  assistant  defense  counsel  were  then  recalled  and 

the  court  at o'clock  — .  m.,  etc. 

> 
Colonel,  5th  Cavalry,  President. 

Captain,  5th  Cavalry,  Trial  Judge  Advocate. 

(The  record  of  revision  will  be  appended  to  the  original  proceed- 
ings, following  them  immediately,  before  the  exhibits,  and  will  be 
returned  to  the  appointing  authority.) 

17  The  trial  judge  advocate  will  also  read  any  other  indorsements  that  may 
be  connected  with  the  proceedings  in  revision. 


628 


APPENDIX  11. 

FORM  FOR  RECORD  OF  TRIAL  BY  SPECIAL 
COURT-MARTIAL. 

Proceedings  of  a  special  court-martial  which  convened  at , 

pursuant  to  the  following  order: 

(Here  insert  a  literal  copy  of  the  order  appointing  the  court  and, 
following  it,  copies  of  any  orders  modifying  the  detail.) 

FORT , 

-1Q 

,     -LO        . 

The  court  met  pursuant  to  the  foregoing  order  at o'clock 

— .  m. 

PRESENT.1 

Maj.  ,  5th  Cavalry. 

Capt. ,  1st  Field  Artillery. 

Capt.  ,  Medical  Corps. 

First  Lieut. ,  10th  Infantry. 

First  Lieut. ,  5th  Cavalry. 

First  Lieut. ,  29th  Cavalry,  trial  judge  advocate. 

First  Lieut. ,  1st  Field  Artillery,  defense  counsel. 


Capt.  —  — ,  Coast  Artillery  Corps. 

The  court  proceeded  to  the  trial  of  Private  * ,  Company , 

—  Infantry,  who4    (on  appearing   before  the  court  introduced 
as  his   individual   counsel)     (was   defended   by   the   defense 


counsel). 

( was  sworn  as  reporter.)8 

(Capt.  —  — ,  because  ineligible,  (being  the  accuser)  (a  witness 
for  the  prosecution)  ( )  was  excused  and  withdrew.) 

(First  Lieut. was,  upon  (peremptory)  challenge,8  excused 

and  withdrew.) 

"'  In  the  record  of  the  proceedings  of  a  court-martial  at  its  organization  for 
the  trial  of  a  case  the  officers  detailed  as  members  and  as  trial  judge  advocate 
and  defense  counsel  will  be  noted  by  name  as  present  or  absent. 

2  Statement  of  neither  reason  nor  authority  for  the  absence  is  required. 

*  Insert  name  and  Army  serial  number. 

*  Words  inclosed  in  parentheses  will  in  a  proper  case  be  omitted. 

6  When  authorized  by  the  appointing  authority,  a  stenographic  reporter  may 
be  employed  for  a  special  court-martial,  to  be  paid  at  the  rates  fixed  in  par. 
113.  (See  par.  112,  M.  C.  M.) 

«  Upon  a  challenge  the  record  will  set  out  in  full  the  proceedings  had  thereon, 
including  all  testimony  taken  and  statements  made  relative  thereto,  as  well  a« 
the  disposition  thereof  made  by  the  court. 

629 


APPENDIX  11. 

The  accused  stated  that  he  had  no  objection  to  trial  by  any  member 
(remaining)  present. 

The  members  of  the  court  and  the  trial  judge  advocate  were  sworn. 

The  accused  was  arraigned  upon  the  following  charges  and  specifi- 
cations : 

CHARGE  I :  Violation  of  the Article  of  War. 

Specification:  In  that,  etc. 

CHARGE  II :  Violation  of  the Article  of  War. 

Specification  1:  In  that,  etc. 

Specification  2:  In  that,  etc 


Captain,  Infantry. 

AFFIDAVIT. 

(See  form,  Appendix  10;  page  619,  supra.) 

(Insert  here  also  a  copy  of  the  order  referring  the  case  for  trial.) 

PLEAS. 

To  all  the  specifications  and  charges:  . 

To  the  Specification,  Charge  I:  . 

To  Charge  I :  -     — . 

To  Specification  1,  Charge  II : . 

To  Specification  2,  Charge  II :  . 

To  Charge  II :  -    — . 

The  following-named  witnesses  were  sworn  and  testified : 

(If  a  reporter  has  been  authorized,  or  the  testimony  ordered  re- 
duced to  writing,  the  record  will  be  prepared  in  the  same  way  a*  the 
record  of  a  general  court-martial.  (See  Appendix  10.)  Otherwise 
the  record  may  be  in  substantially  the  following  form:) 

Sergt , Infantry.  (Here  insert  brief  written  summary 

of  the  testimony  of  the  witness.) 

Corpl.  —  — ,  —  -  Infantry.  (Here  insert  brief  written  summary 
of  the  testimony  of  the  witness.) 

Pvt.  ,  —  -  Infantry.  (Here  insert  brief  written  summary 

of  the  testimony  of  the  ivitness.) 

(In  case  of  any  question  to  which  objection  is  made  such  question 
will  be  inserted  at  length  and  the  action  of  the  court  thereon,  whether 
sustaining  or  overruling  the  objection;  and,  if  the  question  be 
answered,  the  answer  of  the  witness,  thereto;  see  par.  358  (6), 
If.  C.  M.  In  sutfi  case  the  ruling  will  be  by  the  president  in  the  form 
shown  in  Appendix  9.  The  record  may  be  in  substantially  the  same 
form  as  in  the  case  of  an  objection  to  questions  in  a  general  court- 
martial.  See  form,  Appendix  10.) 

The  defense  was  given  full  opportunity  to  examine  each  witness. 

(The  depositions  of  the  following-named  persons  were  received  in 
evidence  and  are  hereto  appended,  marked ,  -  — f  .) 

630 


RECORD  OF  TRIAL  BY  SPECIAL  COURT- MARTIAL. 

The  accused  (at  his  own  request  was  sworn  and  testified)  (made  an 
oral  statement  to  the  court,  in  substance  as  follows :  here  inserting 
summary  of  the  accused's  statement)  (submitted  a  statement  in  writ- 
ing, which  is  hereto  appended,  marked .) 

(The  rights  of  the  accuse'd  as  a  witness  were  explained  to  him,  as 
required  by  par.  215,  M.  G.  M.,  in  the  form  prescribed  in  Appendix  9. ) T 

The  accused  stated  that  he  had  nothing  further  to  offer. 

(An  argument  was  made  by  counsel  on  behalf  of  the  accused,  in 
substance  as  follows : ) 

(The  trial  judge  advocate  made  an  argument  In  substance  as  fol- 
lows : ) 

(A  written  argument  was  submitted  on  behalf  of  the  accused,  and 
is  hereto  appended,  marked .) 

The  court  was  closed,  and  upon  secret  written  ballot,  two-thirds  of 
the  members  present  at  the  time  the  vote  was  taken  concurring  in  each 
finding  of  guilty  (if  any)  finds  the  accused.* 

Of  all  specifications  and  charges : .' 

Of  the  Specifications,  Charge  I :  . 

Of  Charge  I :  — . 

Of  Specification  1,  Charge  II : . 

Of  Specification  2,  Charge  II :  . 

Of  Charge  II : . 

The  court  was  opened  and  the  president  in  open  court  in  the  pres- 
ence of  the  accused  and  his  counsel  announced  that  the  court  (acquits 
the  accused  on  all  specifications  and  charges)  or  (will  receive  evidence 
of  previous  convictions  of  the  accused,  if  any.  In  the  latter  case,  the 
record  will  continue  in  form  similar  to  that  of  a  general  court-martial, 
Appendix  10). 

The  court  then,  at o'clock  — .  m.  (proceeded  to  other  business) 

(adjourned).10 


Major, Infantry,  President. 


First  Lieutenant,  Infantry,  Judge  Advocate. 

Approved, ,  19 — . 


Colonel, Infantry,  Commanding. 


7  In  a  case  where  a  stenographic  reporter  is  employed  or  the  evidence   is 
ordered    recorded,    the    explanation    of    the   president    and    the    reply    of    the 
accused  thereto  will  appear  in   full  in  the  record  of  trial.      (See   par.   215, 
M.  C.  M.,  and  form  Appendix  10.) 

8  See  A.  W.  43,  and  par.  294,  M.  C.  M. 

9  For  action  when  the  accused  pleads  guilty  in  whole  or  in  part,  see  par. 
154   (d),  M.  C.  M. 

10  One  copy  only  of  the  record  will  be  prepared,  except  in  cases  where  the 
testimony    is   ordered    recorded,    when   a    carbon   copy    will   be   prepared    and 
delivered   to   the  accused,   upon   his   request,   in   the   same   manner    prescribed 
in  the  case  of  a  general  court-martial.     (See  pars.  117,  357  (&),  clause  3,  and 
359,  M.  C.  M.) 

631 


APPENDIX  12. 

FORM  FOR  RECORD  OF  TRIAL  BY  SUMMARY 
COURT. 

Complete  the  original  charge  sheet  (see  form,  Appendix  5)  upon 
which  is  indorsed  the  original  order  of  reference  for  trial,  as  the 
record  of  trial  by  summary  court.  (See  pars.  79  (a)  and  363, 
M.  G.  M.) 

(The  indicated  spaces  on  the  third  page  of  the  charge  sheet  will  be 
utilized  by  the  summary  court  for  pleas,  findings,  and  sentence.  The 
form  may  be  substantially  as  follows  :> 

Findings:  *  (If  the  findings  as  to  all  the  specifications  and  charges 
are  the  same,  a  single  proper  entry,  such  as  "  Guilty  "  or  "  Not 
guilty,"  will  be  made*  If  necessary,3  however,  in  order  to  show  the 
facts,  detailed  entries  will  be  made.) 

Sentence : 4 . 


Captain,  Infantry,  Summary  Court. 

Approved, ,  IP—. 


Colonel,  Infantry,  Commanding. 

1  If  a  special  plea  is  ma,4e  the  record  will  set  out  in  full  the  proceedings 
had   thereon  including  tke   substance  of  all   testimony   and    statements   made 
relative  thereto,  as  well  as  the  disposition  made  thereof  by  the  court. 

2  For  action   in   case  the  accused   does  not   testify  or   make  any  statement 
in  his  own  behalf,  see  par.  215,  M.  C.  M.,  and  Form  IV,  Appendix  9. 

3  In   case   the  accused   is  a   noncommis?ionsd   officer    (i.   e.,   a  corporal,   see 
Appendix  21),  he  will  be  asked,  at  the  outset  of  the  trial,  whether  he  objects 
to  trial  by  summary  court-martial ;  and  the  fact  of  his  being  so  asked,  and 
his  answer  to  the  question,  will  be  written  down  in  the  record  of  tria?,  and 
also  in  the  report  of  trial.     (See  "note"  to  par.  43(fe),  M.  C.  M.) 

4  For  action  in  case  accused  pleads  guilty,  see  par.  351    (d),  M,  C.  M<  and 
Form  III,  Appendix  9. 


632 


APPENDIX  13. 
FORMS  OF  SENTENCES. 


(For  forms  for  action  by  reviewing  authority  on  sentences  by  courts- 
martial,  see  Appendix  15.) 

A  sentence  adjudged  by  a  court-martial  will,  in  a  proper  case,  be 
expressed  substantially  in  one  or  another  of  the  forms  following. 
When  desirable,  in  a  proper  case,  two  or  more  of  the  forms  may  be 
combined. 

1.  To  have  his  pay  for days  detained. 

2.  To  have  two-thirds    (or  oilier  fraction)   of  his  pay  per  month 
for  months  detained. 

3.  To  forfeit  days'  pay. 

4.  To  forfeit  two-thirds  (or  other  fraction)  of  his  pay  per  month 
for months. 

5.  To  perform  hard  labor  for days  (or  months). 

6.  To  be  confined  at  hard  labor  for days  (or  months). 

7.  To  be  confined  at  hard  labor,  at  such  place  as  the  reviewing 
authority  may  direct,  for days  (or  months  or  years). 

8.  To  be  confined  at  hard  labor,  at  such  place  as  the  reviewing 

authority  may  direct,  for  months  and  to  forfeit  two-thirds 

(or  other  fraction)  of  his  pay  per  month  for  a  like  period. 

9.  To  be  dishonorably  discharged  the  service  and  to  forfeit  all  pay 
and  allowances  due  or  to  become  due. 

10.  To  be  dishonorably  discharged  the  service,  to  forfeit  all  pay  and 
allowances  due  or  to  become  due,  and  to  be  confined  at  hard  labor, 

at  such  place  as  the  reviewing  authority  may  direct,  for days 

(or  months  or  years). 

11.  To  be  reduced  to  the  grade  of  private. 

12.  To  be  deprived  of  all  rights  and  privileges  arising  from  his 
certificate  of  eligibility  to  promotion. 

13.  To  be  admonished. 

14.  To  be  reprimanded. 

15.  To  be  restricted  to  the  limits  of  his  post    (or  other  place) 
for months. 

16.  To  be  suspended  from  duty  for months. 

17.  To  be  suspended  from  command  for month 

18.  To  be  suspended  from  rank  for  months. 

19.  To  be  reduced  in  rank  —    —  files. 

20.  To  be  reduced  in  rank  so  that  his  name  shall  appear  in  the 
lineal  list  of  officers  next  below  that  of . 


633 


APPENDIX  13. 

21.  To  be  dismissed  the  service  and  to  forfeit  all  pay  and  allow- 
ances due  or  to  become  due. 

22.  To  pay  to  the  United  States  a  fine  of dollars  and  to  be 

confined  at  hard'labor,  at  such  place  as  the  reviewing  authority  may 

direct,  until  said  fine  is  so  paid,  but  for  not  more  than months 

(or  years). 

23.  To  pay  to  the  United  States  a  fine  of dollars,  to  be  con- 
fined at  hard  labor,  at  such  place  as  the  reviewing  authority  may 

direct,  for  months  (or  years),  and  to  be  further  confined  at 

hard  labor  until  said  fine  is  so  paid,  but  for  not  more  than  

months  (or  years),  in  addition  to  the months  (or  years)  here- 
inbefore adjudged. 

24.  To  be  dishonorably  discharged  the  service  of  the  United  States, 
to  forfeit  all  pay  and  allowances  due  or  to  become  due,  and  to  be 
confined  at  hard  labor,  at  such  place  as  the  reviewing  authority  may 
direct,  for  the  term  of  his  natural  life. 

25.  To  be  shot  to  death  with  musketry. 

26.  To  be  hanged  by  the  neck  until  dead. 


634 


APPENDIX  14 
FORMS  FOR  SYNOPSES  OF  SENTENCES. 

[For  Entry  in  Service  Record.] 

INSTRUCTIONS. 

(See  also  "Instructions,"  Appendix  7.) 

The  forms  for  recording  the  synopses  of  sentences  adjudged  by 
court-martial,  as  set  forth  below,  constitute  a  general  guide  for  use 
in  entering  the  sentences  on  the  service  record,  the  entries  being 
made  in  the  following  sequence  in  each  case: 

(a)   Sentence  as  approved;  (&)  date  of  approval  of  sentence. 
(These  forms  cover  the  forms  for  sentences  given  in  Appendix  13.) 

1.  Pay  for  10  days  detained, /18. 

2.  |  pay  for  mo.  for  2  mos.  detained,  /18. 

3>  Forfeit  10  days'  pay, /IS. 

4.  Forfeit  §  pay  per  mo.  for  2  mos., /18. 

5.  Hard  labor  for  5  days,  /18. 

6.  Confrat  10  days,  — /18. 

7.  Confmt.  2  mos., /18. 

8.  Confmt,  2  mos.     Forfeit  $  pay  for  like  period. 

9.  Dishon.  disch.,  /18. 

10.  Dishon.  disch.  conf.  6  mos.,  A8. 

11.  Reduced,  /18. 

12.  Loss  of  privileges  of  certificate  of  eligibility,  /18w 

13  and  14  omitted ;  refer  to  officers  only. 

15.  Restricted  to  limits  of  post  for  6  mos.,  /18. 

16  to  24  omitted;  refer  to  officers  only. 

25.  To  be  shot, /18. 

26.  To  be  hanged,  /18. 


APPENDIX  15. 
FORMS  FOR  ACTION  BY  REVIEWING  AUTHORITY. 

[For  forms  for  sentences  see  Appendix  13.] 

The  following  forms  will  serve  as  a  general  guide  for  reviewing 
authorities  in  recording,  in  cases  in  which  such  forms  are  appropriate, 
their  action  on  sentences  imposed  by  courts-martial.  In  a  proper  case 
the  substance  of  two  or  more  of  the  forms  may  be  combined.  Like- 
wise, the  action  as  recorded  may  contain  proper  matter  additional  to 
that  set  out  in  any  of  the  several  forms. 

A.  FORMS  FOR  ORIGINAL  ACTION. 

1    Approved    and    ordered    executed    (or   disapproved)    , 

192—. 


Colonel, Infantry,  Commanding. 

2  Headquarters , ,  192 — . 

Approved  and  ordered  executed  (or  disapproved). 


Colonel, Infantry,  Commanding. 

3    Approved  and  suspended ,  192 — . 


Colonel, Infantry,  Commanding. 

4    Approved  and  ordered  executed,  but  forfeiture    (or  confine- 
ment) suspended, ,  192 — . 


Colonel, Infantry,  Commanding. 

5  Headquarters  —     — ,  —     — ,  192 — . 

In  the  foregoing  case  of ,  the  sentence  is  approved  and  will 

be  duly  executed  (or  is  disapproved). 


Colonel, Infantry,  Commanding. 

6  Headquarters  —     — ,  —   — ,  192—. 

In  the  foregoing  case  of —  the  sentence  is  approved,  but  owing 

to  the  length  of  time  the  accused  has  been  in  confinement  —  —  days 
(or  months)  of  the  confinement  imposed  are  remitted.  As  thus 
modified  the  sentence  will  be  duly  executed. 


Colonel, Infantry,  Commanding. 

636 


FORMS  FOR  ACTION  BY  REVIEWING  AUTHORITY. 

7  Headquarters , ,  192 — . 

In  the  foregoing  case  of the  findings  of  Specifications  1  and  2, 

Charge  II,  are  disapproved.    The  sentence  is  approved  and  will  be 
duly  executed. 


Colonel, Infantry,  Commanding. 

8  Headquarters , ,  192 — . 

In  the  foregoing  case  of  only  so  much  of  the  findings  of 

guilty  of  the  specification  of  Charge  I  and  of  Charge  I  as  involves  a 
finding  of  guilty  of  absence  without  leave  from to ,  ter- 
minated by  apprehension  (or  surrender)  is  approved.  Only  so  much 

of  the  sentence  as  provides  for is  approved  and  will  be  duly 

executed. 


Colonel, Infantry,  Commanding. 

9  Headquarters , ,  192—. 

In  the  foregoing  case  of the  sentence  is  approved,  but  the 

execution  thereof  is  suspended. 

Colonel, Infantry,  Commanding. 

10  Headquarters , ,  192 — . 

In  the  foregoing  case  of  the  sentence  is  approved,  but  the 

execution  thereof,  in  so  far  as  it  relates  to  forfeiture  of  pay  (or  to 
confinement)  is  suspended. 

Colonel, Infantry,  Commanding. 

11  Headquarters , ,  192 — . 

In  the  foregoing  case  of the  sentence  is  approved  and  will  be 

duly  executed,  but  the  execution  of  that  portion  thereof  adjudging 
dishonorable  discharge  is  suspended  until  the  soldier's  release  from 
confinement.  is  designated  as  the  place  of  confinement. 


General,  Commanding. 

12  Headquarters , ,  192—. 

In  the  foregoing  case  of the  sentence  is  approved  and  will  be 

duly  executed.    is  designated  as  the  place  of  confinement. 

General,  Commanding. 

13  Headquarters , ,  192 — . 

In  the  foregoing  case  of it  Appears  from  the  record  of  trial 

that  the  ofiicer  who  had  subscribed  the  charges  participated  as  a  mem- 
ber of  the  court  in  the  findings  and  sentence.  As  such  officer  is  prima 
facie  the  accuser  in  the  case,  and  as  the  record  of  trial  contains  noth- 


21358°— 20 41  637 


APPENDIX  15. 

ing  to  indicate  that  the  court  upon  investigation  arrived  at  a  finding 
that  he  was  not  in  fact  such  accuser,  the  proceedings  are,  in  view  of 
the  provisions  of  the article  of  war,  invalid. 


General,  Commanding. 


14  Headquarters , f  192—. 

In  the  foregoing  case  of it  appears  from  the  record  of  trial 

that  an  officer  who  testified  as  a  witness  for  the  prosecution  partici- 
pated as  a  member  of  the  court  in  the  findings  and  sentence.     In  view 

of  the  provisions  of  the  article  of  war  the  proceedings  are 

invalid. 


General,  Commanding. 

15  Headquarters , ,  192 — . 


To . 

In  the  foregoing  case  of  the  sentence  is  approved  and  the 

record  of  trial  is  forwarded  for  action  under  the  forty-eighth  article 
of  war. 

General,  Commanding. 

16  Headquarters , ,  192—. 

To  the  Judge  Advocate  General  of  the  Army. 

In  the  foregoing  case  of the  sentence  is  approved,  but  the 

execution  thereof  is  suspended  until  the  pleasure  of  the  President  be 
known,  and  the  record  of  trial  is  forwarded  for  action  under  the  fifty- 
first  article  of  war. 


• General,  Commanding. 

17  Headquarters , ,  192—. 

In  the  foregoing  case  of the  sentence  is  approved  and  will  be 

duly  executed  at on ,  192 — ,  under  the  direction  of  the 

commanding , 


-  General,  Commanding. 

18  Headquarters , ,  192 — . 

In  the  foregoing  case  of the  sentence  is  confirmed  and  will  be 

duly  executed  at on ,  192 — ,  under  the  direction  of  the 

commanding . 


,  •  General,  Commanding. 

19  Headquarters , ,  192 — -. 

In  the  foregoing  case  of  the  sentence  Is  approved   (or  « -on- 
firmed)    (but  the  period  of  confinement  is  reduced  to  -).     The 


638 


FORMS  FOR  ORDERS  VACATING  SUSPENSIONS. 

is  designated  as  the  place  of  confinement.     Pursuant  to  the 

provisions  of  Article  of  War  50£  applying  to  this  case,  the  execution 
of  the  sentence  will  not  be  ordered  until  the  Board  of  Review  and  the 
Judge  Advocate  General  shall  have  passed  upon  the  legal  sufficiency 
of  the  record  to  support  the  sentence. 


General,  Commanding. 


B.  FORMS  FOR  ORDERS  VACATING  SUSPENSIONS. 

1  Headquarters  — , — ,  192 — . 

So  much  of  the  order  published  in  — Court-Martial  Order  No. 

— f  ^  192 — f  these  headquarters,  ,  192 —   (or  found  in  a 

record  of  trial  by  summary  court  approved ,  192 — ),  as  suspends 

execution  of  sentence  in  the  case  of is  vacated  and  said  sen- 
tence will  be  carried  into  execution. 
By  order  of  Col. ; 

Adjutant. 

2  Headquarters  -     — ,  —   — ,  192—. 
So  much  of  the  order. published  in  —       —  Court-Martial  Order  No. 

— ,  -      — ,  192 — ,  these  headquarters,  ,  192 —   (or  found  in  a 

r  word  of  trial  by  summary  court  approved ,  192 — ),  as  suspends 

execution  of  sentence  to  confinement  (or  forfeiture  of  pay)  in  the  case 
of  -  —  is  vacated,  and  that  part  of  said  sentence  will  be  carried 
into  execution. 

By  order  of  Col. : 

Adjutant. 

3  Headquarters  — — ,  •— - — ,  192—. 

So  much  of  the  order  published  in  General  Court-Martial  Order  No. 

— ,  ,  192—,  these  headquarters,  as  suspends  execution  of  sen- 
tence to  dishonorable  discharge  in  the  case  of is  vacated,  and 

that  part  of  said  sentence  will  be  carried  into  execution. 
By  order  of  Col. >: 

Adjutant. 


639 


APPENDIX  16. 

COURT-MARTIAL  ORDERS. 

A.  FORM   FOR  GENERAL   COURT-MARTIAL   ORDER. 

GENERAL  COURT-MARTIALJHEADQUARTERS  EASTERN  DEPARTMENT, 

ORDER  No.  447.  J        Governors  Island,  N.  Y.,  July  27,  1919. 

Before  a  general  court-martial  which  convened  at  Fort  Hamilton, 
N.  Y.,  pursuant  to  paragraph  6,  Special  Orders,  No.  93,  Headquarters 
Eastern  Department,  April  24,  1919,1  as  modified  by  paragraph  7, 
Special  Orders,  No.  101,  Headquarters  Eastern  Department,  May  26, 
1910,  was  arraigned  and  trie'd : 

Private  John  Doe,  1,682,364,  Company  F,  29th  Infantry. 

CHARGE  I :  Violation  of  the  58th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry, 
did  at  Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  desert  the  service 
of  the  United  States  and  did  remain  absent  in  desertion  until  he  was 
apprehended  at  Brooklyn,  N.  Y.,  on  or  about  June  30,  1919. 

CHARGE  II :  Violation  of  the  84th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  Infantry, 
did  at  Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  through  neglect, 
lose  one  overcoat,  olive  drab,  value  $14.84,  and  one  blanket,  light 
weight,  value  $3.79,  issued  for  use  in  the  military  service. 

PLEAS. 

To  the  specification,  Charge  I :  "  Not  guilty.'* 

To  Charge  I :  "  Not  guilty." 

To  the  specification,  Charge  II :  "  Not  guilty." 

To  Charge  II :  "  Not  guilty." 

Or 

To  all  the  specifications  and  charges:  "Not  guilty."* 

FINDINGS. 

Of  the  specification,  Charge  I :  "  Guilty."  * 

Of  Charge  I :  "  Guilty." 

Of  the  specification,  Charge  II :  "  Guilty." 

Of  Charge  II :  "  Guilty." 

Or 

Of  all  the  specifications  and  charges :  "  Guilty."  * 

1  The  orders  appointing  the  court  and  all  orders  modifying  the  convening 
order  will  be  cited. 

3  Where  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications,  of 
Is  fouud  guilty  or  not  guilty  of  all,  the  form  may  be  abbreviated  as  indicated, 

*  If  a  special  plea  has  been  made  and  sustained  "by  the  court,  the  wording 
will  be :  "  Plea  in  ( — '- )  sustained  by  the  court" 


C40 


COURT-MARTIAL  ORDERS. 

SENTENCE. 

To  be  dishonorably  discharged  the  service;  to  forfeit  all  pay  and 
allowances  due,  or  to  become  due;  and  to  be  confined  at  hard  labor 
at  such  place  as  the  reviewing  authority  may  direct  for  two  years. 
(Four  previous  convictions  considered.) 

The  sentence  was  adjudged  on ,  19 — -. 

The  sentence  is  approved  and  will  be  duly  executed. 

(In  cases  where  Article  of  War  50$  requires  that  before  execution 
of  the  sentence  is  ordered  the  record  of  trial  be  reviewed  by  the  Board 
of  Review  and  the  Judge  Advocate  General:)  The  record  of  trial 
having  been  reviewed  by  the  Board  of  Review  and  the  Judge  Advocate 
General,  as  required  by  Article  of  War  50£,  and  held  legally*  suffi- 
cient to  support  the  findings  and  sentence,  the  sentence  is  approved 
and  will  be  duly  executed)  ;  or,  from  asterisk  (insufficient  to  support 

so  much  of  the  sentence  as  is  in  excess  of (reciting  the  holding, 

as  the  case  may  be),  so  much  of  the  sentence  is  approved  as  does  not 
exceed ..  As  thus  modified  the  sentence  will  be  duly  executed.) 

The  United  States  Disciplinary  Barracks  is  designated  as  the  place 
of  confinement. 

By  command  of . 


Colonel,  General  Staff,  Chief  of  Staff. 
Official. 


Adjutant  General,  Adjutant. 
B.  FORM   FOR   SPECIAL   COURT-MARTIAL  ORDER. 

SPECIAL  COURT-MARTIAL!  HEADQUARTERS  FORT  JAY,  N.  Y., 

ORDER  No.  43.          J  juiy  27,  1919. 

Before  a  special  court-martial  which  convened  at  Fort  Jay,  N.  Y., 
pursuant  to  paragraph  6,  Special  Orders,  No.  93,  these  headquarters, 
April  24,  1919,  as  modified  by  paragraph  7,  Special  Orders,  No.  101, 
these  headquarters,  May  26,  1919,  was  arraigned  and  tried: 

Private  John  Doe,  Company  F,  29th  Infantry. 

CHARGE  I :  Violation  of  the  58th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  In- 
fantry, did  at  Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  desert  the 
service  of  the  United  States  and  did  remain  absent  in  desertion  until 
he  was  apprehended  at  Brooklyn,  N.  Y.,  on  or  about  June  30,  1919. 

CHARGE  II :  Violation  of  the  84th  Article  of  War. 

Specification:  In  that  Private  John  Doe,  Company  F,  29th  In- 
fantry, did  at  Fort  Jay,  N.  Y.,  on  or  about  March  27,  1917,  through 
neglect,  lose  one  overcoat,  olive  drab,  value  $14.84,  and  one  blanket, 
light  weight,  value  $3.29,  issued  for  use  in  the  military  service. 

2  Where  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications  or  is 
found  guilty  or  not  guilty  of  all.  the  form  may  be  abbreviated  as  indicated. 

641 


APPENDIX   16. 

PLEAS. 

To  the  specification,  Charge"  I:  "  Not  guilty'.** 

To  Charge  I:  "Not  guilty." 

To  the  specification,  Charge  II:  "Not  guilty.** 

To  Charge  II  :  "  Not  guilty." 

Or 

To  all  the  'specifications  arid  charges:  "Not  guilty."' 

FINDINGS. 

Of  the  specification,  Charge  I:  "Guilty."* 

Of  Charge  I  :  "  Guilty." 

Of  the  specification,  Charge  II  :  "  Guilty." 

Of  Charge  II  :  "  Guilty." 

Or 

Of  all  the  specifications  and  charges  :  "  Guilty]"  * 


To  be  confined  at  hard  labor  for  six  months  and  to  forfeit  two- 
thirds  of  his  pay  per  month  for  a  like  period.  (Two  previous  con- 
victions considered.) 

The  sentence  is  approved. 

By  order  of  --  . 

Adjutant. 
Official  : 

~^» 
Adjutant. 

2  Where  the  accused  pleads  guilty  or  not  guilty  to  all  the  specifications,  or 
is  found  guilty  or  not  guilty  of  all/the  form  tnay  be  abbreviated  aa  indicated. 

•If  a  special  plea  lias  been  made  and  sustained  by  the  court,  the  -wording 
will  be:  "-Plea  in  -  (  -  )  sustained  by  the  court." 


642 


APPENDIX  17. 
INTERROGATORIES  AND  DEPOSITION. 

To  be  read  in  evidence  before  a1  ,  United  States  Army,  ap- 
pointed to  meet  at  -     — ,  by  paragraph  — ,  Special  Orders,  No.  — , 

Headquarters , ,   191 — ,   in   the  case  of    (in   the  matter 

of)' . 

To : 

Please  cause  to  be  taken  (on  the  interrogatories  herein  contained"1) 
the  deposition  of ,  to  be  found  at . 


HEADQUARTERS, ,  191 — . 

To , 

who  will  take  or  cause  to  be  taken4  the  deposition  of  the  person 
named  above  (on  the  interrogatories*  herein  contained)* 

By  of 


Adjutant. 

First  interrogatory:''  Are  you  in  the  military  service  of  the  United 
States?  If  so,  what  is  your  full  name,  rank,  organization,  and  station? 
If  not,  what  is  your  full  name,  occupation,  and  residence? 

Answer : 9  . 

Second  interrogatory:  . 

Answer : . 


First  cross-interrogatory: 

Answer : . 

First  interrogatory  by  the 
Answer : . 


(Witness  sign  here) 


1  General  (or  special  or  summary)  court-martial,  or  military  commission,  or 
court  of  inquiry,  or  military  board. 

1  Name,  rank,  and  organization  of  the  accused,  or  other  proper  words  identify- 
ing the  particular  matter  In  which  the  deposition  is  desired  to  be  used. 

3  To  be  subscribed  by  the  trial  judge  advocate  or  other  proper  person  wiUi 
his  name,  rank,  organization,  and  official  title,  as  "  trial  judge  advocate," 
"  summary  court,"  "  recorder,"  etc. 

*  Strike  out  word  or  words  not  used. 

*  If  it  is  desired  to  give  special  instructions,  or  if  a  travel  order  is  necessary, 
the  remaining  space  will  be  used  for  the  purpose. 

6  If  the  spaces  for  answers  are  not  sufficient,  extra  sheets  may  be  inserted  by 
the  officer  taking  the  deposition.  In  such  case  he  will  rewrite  the  interroga- 
tories, writing  the  answers  immediately  below  the  respective  interrogatories. 

•?  If  the  deposition  is  to  be  taken  on  oral  interrogatories  (see  pars.  174a  and 
.  M.  C.  M.).  this  form  will  be  changed  accordingly. 


643 


APPENDIX  17. 

I  certify  that  the  above  deposition  was  duly  taken  by  me,  and  that 
the  above-named  witness,  having  been  first  duly  sworn  by  me,  gave 
the  foregoing  answers  to  the  several  interrogatories,  and  that  he  sub- 
scribed the  foregoing  deposition  in  my  presence  at ,  this 

day  of ,  191 — . 

(Name) , 


(Rank  and  organization) 


(Official  character,  as  "  summary  court,"  "officer  designated  to  take 
the  deposition,"  "  notary  public,"  etc. ) 


[Back.] 
INSTRUCTIONS. 

1.  Interrogatories,   how   submitted. —  (a)  The  party   desiring   the 
deposition  submits  to  the  opposite  party  the  interrogatories  which  he 
wishes  propounded  to  the  person  whose  deposition  he  desires,  and  the 
opposite  party  then  submits  to  him  such  cross-interrogatories,  if  any, 
as  he  may  desire.    Such  additional  direct  and  cross-interrogatories  may 
be  submitted  as  desired ;  or 

(b)  The  party  desiring  the  deposition  submits  to  the  court,  military 
commission,  or  board  the  interrogatories  which  he  wishes  propounded 
to  the  person  whose  deposition  he  desires.    The  opposite  party  then 
submits  to  the  court,  military  commission,  or  board  such  cross-interrog- 
atories, if  any,  as  he  may  desire.    The  court,  military  commission,  or 
board  then  submits  such  additional  interrogatories  as  they  may  deem 
proper  and  desirable,  and  such  additional  direct  and  cross-interrog- 
atories may  be  submitted  as  are  desired ;  or 

(c)  Where  the  court,  military  commission,  or  board  desires  that  the 
deposition  of  a  particular  person  be  obtained  it  will  cause  interroga- 
tories to  be  prepared  accordingly.     The  prosecution  and  defense  (or 
other  party  or  parties  in  interest)  then  submit  such  interrogatories  as 
they  may  desire.    Such  additional  interrogatories  may  be  included  as 
are  desired  by  the  court,  military  commission,  or  board,  or  by  a  party 
in  interest.     (M.  C.  M.,  par.  176.) 

2.  Procedure  to  obtain  deposition  on  written  interrogatories. —  (a) 
All  the  interrogatories  to  be  propounded  to  the  person  are  entered 
upon  the  form  for  interrogatories  and  deposition,  and  the  trial  judge 
advocate,  summary  court,  or  recorder  will  take  appropriate  steps  to 
cause  the  desired  deposition  to  be  taken  with  the  least  practicable  de- 
lay.   In  the  ordinary  case  he  will  either  send  the  interrogatories  to  the 
commanding  officer  of  the  post,  recruiting  station,  or  other  military 
command,  at  or  nearest  which  the  person  whose  deposition  is  desired 
Is  stationed,  resides,  or  is  understood  to  be,  or  will  send  them  to  some 
other  responsible  person,  preferably  a  person  competent  to  administer 


644 


INTERROGATORIES   AND  DEPOSITIONS. 

oaths,  at  or  near  the  place  at  which  the  person  whose  deposition  Is 
desired  is  understood  to  be.  In  a  proper  case  the  interrogatories  may 
be  sent  to  the  corps  area  or  other  superior  commander,  or  to  the  wit- 
ness himself,  and  in  any  case  they  will,  when  necessary,  be  accom- 
panied by  a  proper  explanatory  letter. 

(&)  When  interrogatories  are  received  by  a  commanding  officer  he 
will  either  take  or  cause  to  be  taken  the  deposition  thereon.  He  may 
send  an  intelligent  enlisted  man — preferably  a  noncommissioned  officer, 
if  available — to  the  necessary  place  for  the  purpose  of  obtaining  the 
deposition,  or  he  may  properly  arrange  by  mail  or  otherwise  that  the 
deposition  be  taken.  The  deposition  will  be  taken  with  the  least  prac- 
ticable delay,  and  when  taken  will  be  sent  at  once  direct  to  the  trial 
judge  advocate  of  the  court-martial  trying  th£  case,  or  other  proper 
person. 

(c)  If  the  witness  whose  deposition  is  desired  is  a  civilian,  the  trial 
judge  advocate,  or  other  proper  person  sending  interrogatories  as  above, 
will  inclose  with  them  a  prepared  voucher  for  the  fees  and  mileage  of 
the  witness,  leaving  blank  such  spaces  provided  therein  as  it  may  be 
necessary  to  leave  blank,  accompanied  by  the  required  number  of  copies 
of  the  orders  appointing  the  court,  military  commission,  or  board.  The 
trial  judge  advocate,  summary  court,  or  recorder  will  also  send  with  the 
interrogatories  duplicate  subpoena  requiring  the  witness  to  appear  in 
person  at  a  time  and  place  to  be  fixed  by  the  officer,  military  or  civil, 
who  is  to  take  the  deposition.  If  the  name  of  this  officer  is  not  known, 
the  space  provided  for  it  will  be  left  blank.  If  a  military  officer  takes 
the  deposition,  he  will  complete  the  witness  voucher,  certify  it,  and 
transmit  it  to  the  nearest  disbursing  finance  officer  for  payment. 
When  the  deposition  is  to  be  taken  by  a  civil  officer,  he  will  be  asked  to 
obtain  and  furnish  to  the  military  officer  requested  or  designated  to 
cause  the  deposition  to  be  taken  the  necessary  data  for  the  completion 
of  the  witness  voucher,  and  the  latter  will  complete  the  voucher, 
certify  it,  and  transmit  it  to  the  nearest  disbursing  finance  officer  for 
payment.  In  the  case  of  a  military  witness,  a  subpoena  will  not  accom- 
pany the  interrogatories,  but  the  officer  before  whom  the  deposition  is 
to  be  taken  will  take  the  necessary  steps  to  have  the  witness  appear  at 
the  proper  time  and  place.  (M.  C.  M.,  par.  177.) 

3.  Procedure  to  obtain  deposition  on  oral  interrogatories. — Follow  the 
provisions  of  paragraph  181£,  M.  C.  M. 

4.  Payment  of  civilian  witnesses,  etc.— (a)  A  civilian,  not  in  Gov- 
ernment employ,  duly  summoned  to  appear  as  a  witness  before  a  mili- 
tary court,  commission  or  board,  or* at  a  place  where  his  deposition  is 
to  be  taken  for  use  before  such  military  court,  commission  or  board, 
will  receive  $1.50  for  each  day  of  his  actual  attendance  before  such 
military  court,  commission  or  board,  or  for  the  purpose  of  having  his 
deposition  taken,  and  5  cents  a  mile  for  going  from  his  place  of  resi- 
dence to  the  place  of  trial  or  of  the  taking  of  his  deposition,  and  5 
cents  a  mile  for  returning,  except  as  follows: 


645 


APPENDIX   17. 

(1)  In  Porto  Rico  and  Cuba  he  will  receive  $1,50  a  day  while  in 
attendance  as  above  stated,  and  15  cents  for  eaca  mite  necessarily 
traveled  over  stage  line  or  by  private  conveyance,  and  10  cents  for 
each  mile  over  any  railway  or  steamship  line. 

(2)  In  Alaska,  east  of  the  one  hundred  and  forty-first  degree  of 
west  longitude,  be  will  receive  $2  a  day  while  in  attendance  as  above 
stated,  and  10  cents  a  mile;  and  west  of  said  degree  -$4  a  day  und  15 
cents  a  mile. 

(3)  In   tlic    States   of    Wyoming,    Montana,   Washington,    Oregon, 
California,  Nevada,  Idaho,  Colorado,  Utah,  New  Mexico,  and  Arizona 
he  will  receive  $5  a  day  for  the  time  of  actual  attendance  as  alvwe 
stated,  and  for  the  time  necessarily  occupied  in  going  to  and  return- 
ing from  the  same,  and  15  cents  for  each  mile  necessarily  traveled 
over  any  stage  line  or  by  private  conveyance,  and  5  cents  for  each 
mile  by  any  railway  or  steamship.    (M.  C.  M.,  par.  185.) 

(b)  Civil  officers  before  whom  depositions  are  taken  for  use  in 
the  military  service  will  be  paid  the  fees  allowed  by  the  law  of  the 
place  where  the  depositions  are  taken.  (M.  C.  M.,  par.  181.) 

5.  Articles  of  War. 

ART.  26.  DEPOSITIONS — BEFORE  WHOM  TAKEN. — Depositions  to  be  read 
in  evidence  before  military  courts,  commissions,  courts  of  inquiry,  or 
military  boards,  or  for  other  use  in  military  administration,  may  be 
taken  before  and  authenticated  by  any  officer,  military  or  civil,  author- 
ized by  the  laws  of  the  United  States  or  by  the  laws  of  the  place  where 
the  deposition  is  taken  to  administer  oaths, 

ART.  114.  AUTHORITY  TO  ADMINISTEB  OATHS. — Any  judge  advocate 
or  acting  judge  advocate,  the  president  of  a  general  or  special  court- 
martial,  any  summary  court-martial,  the  trial  judge  advocate  or  any 
assistant  trial  judge  advocate  of  a  general  or  special  court-martial,  the 
president  or  the  recorder  of  a  court  of  inquiry  or  of  a  military  board, 
any  officer  desi^aated  to  take  a  deposition,  any  officer  detailed  to  con- 
duct, an  investigation,  and  the  adjutant  of  any  command  shall  have 
power  to  administer  oaths  for  the  purposes  of  the  administration  of 
military  justice  and  for  other  purposes  of  military  administration; 
and  in  foreign  places  where  the  Army  may  be  serving  shall  have  the 
general  powers  of  a  notary  public  or  of  a  consul  of  the  United  States 
in  the  administration  of  oaths,  the  execution  and  acknowledgment  of 
legal  instruments,  the  attestation  of  documents,  and  all  other  forms 
of  notarial  acts  to  be  executed  by  persons  subject  to  military  law. 

6.  Taking    depositions    in    foreign    country. — If    the    evidence    de- 
si  rod  from  a  witness  residing  in  a  foreign  country  'is  necessary  and 
material  and  is  desired  to  be  read  before  a  court-martial,  military 

Mission,  court  of  inquiry,  or  military  board  sitting  within  any  of 
the  States  of  the  Union  or  the  District  of  Columbia,  interrogatories 
I  :;<">ctonapanted  by  the  necessary  vouchers  for  fees  and  mileage)  will 
ordinarily  be  forwarded  through  military  channels  to  The  Adjutant 
General  of  the  Army.  They  will  then  be  transmitted  by  the  Seere- 


C46 


INTERROGATORIES  AND  DEPOSITIONS. 

tary  of  War  to  the  Secretary  of  State  with  the  request  that  they 
be  sent  to  the  proper  consul  of  the  United  States  and  the  deposition 
of  the  witness  taken.  In  the  case  of  troops  serving  along  the  interna- 
tional boundaries  outside  of  the  United  States  proper,  or  in  foreign 
countries,  the  officer  exercising  general  court-martial  jurisdiction 
may,  in  his  'discretion,  detail  an  officer  to  take  the  deposition  of  a 
civilian  witness  or  he  may  send  the  interrogatories  direct  to  the 
consul  of  the  United  States  nearest  the  place  of  residence  of  the  wit- 
ness with  the  request  that  the  deposition  be  taken.  In  the  latter 
case  the  interrogatories  will  be  accompanied  by  the  proper  vouchers 
for  the  fees  and  mileage  of  the  witness.  (M.  0.  M.,  par,  182.) 


847 


APPENDIX  18. 
FORM  OF  REPORT  OF  INVESTIGATING  OFFICER. 

Under  paragraph   76a,   Manual   for  Courts-Martial. 

Headquarters 

(Place:) 

(Date:) ,  10—. 

To: 

Subject:  Inclosed  charges. 

1.  I  have  investigated  the  inclosed  charges,  dated  ,  192 — , 

against  (Private  John  Doe,  Army  Serial  No.  235789,  Machine  Gun 
Troop,  2nd  Cavalry),  in  accordance  with  the  provisions  of  paragraph 
76a,  Manual  for  Courts-Martial.  I  have,  in  the  presence  of  the 
accused,  examined  all  available  witnesses  and  documentary  evidence, 
and  have  reduced  the  material  testimony  given  by  each  witness,  on 
direct  examination  and  on  cross-examination,  to  a  clear,  succinct  state- 
ment or  summary  which,  in  the  presence  of  the  accused,  was  read  over 
to  the  witness  and  signed  by  the  witness  and  sworn  to  by  him  before 
me.1  Following  is  such  summary  of  the  material  testimony  given  by 
each  witness.8 

Sergeant  JAMES  JONES,  Machine  Gun  Troop,  2d  Cavalry. 

While  on  duty  as  stable  sergeant,  12th  May,  1920,  about  two  o'clock, 
I  told  accused,  Private  Doe,  then  working  on  stable  police,  to  put  out 
the  bedding  hay. 

About  three  o'clock  that  afternoon  I  missed  accused.  I  searched  fol 
him,  but  could  not  find  him ;  but  found  that  two  horses  were  gone  from 
the  corral,  and  two  bridles  were  gone.  I  reported  it  to  the  first 
sergeant.  They  were  cavalry  horses,  Government  horses,  issued  to  Ma- 
chine Gun  Troop,  2d  Cavalry,  for  drill  purposes;  and  were  valued  at 
$184.40  each. 

CROSS-EXAMINATION. 

I  missed  the  horses  about  two  o'clock  or  2.30  in  the  afternoon,  while  I 
was  looking  for  the  accused.  I  did  not  see  the  accused  take  them. 
Horses  sometimes  get  away  from  the  troop;  but  I  have  never  known 
one  to  get  out  of  the  corral. 


Sc/t.,  Machine  Gun  Troop,  2d  Cavalry. 


1  If  any  witness  declines  to  sign  or  swear  to  his  statement,  that  fact  will  be 
noted.     If  a  witness  desires  the  statement  changed  before  signing  it,  it  will  be 
changed  as  desired. 

2  For  action  when  it  is  not  practicable  to  obtain  personal  testimony  from  a 
distant  witness,  see  par.  76a,  clause  8,  M.  C.  M*. 


C48 


FORM   OF   REPORT   OF  INVESTIGATING   OFFICER. 

First  Sergeant  WILLIAM  K.  BLACK,  Machine  Gun  Troop,  2d  Cavalry. 

I  was  on  duty  as  first  sergeant  of  the  Machine  Gun  Troop  on  May  12, 
1920.  I  put  the  accused  on  stable  police  that  morning.  (Continue  in 
the  same  form  as  with  the  other  witness:) 

CROSS-EXAMINATION. 

We  knew  the  tracks  were  those  of  cavalry  mounts  by  the  marks  of 
the  horseshoes. 


1st  Sgt.,  Machine  Gun  Troop,  2d  Cavalry. 
Corporal  ALBERT  M.  YOUNG,  Machine  Gun  Troop,  2d  Cavalry. 
(Same  form  as  before.) 

NO  CROSS-EXAMINATION. 

The  accused "  having  been  carefully  warned  by  me  that  it  was  not 
necessary  for  him  to  make  any  statement  with  reference  to  the  charges 
against  him,  but  that  if  he  did  make  one  it  might  be  used  against  him, 
(said  that  he  did  not  desire  to  make  a  statement)  or  (made  the  follow- 
ing statement:) . 

(//  such  be  the  case:  "  Appended  is  the  report  of  examination  of  the 
accused  in  accordance  with  paragraph  76c,  Manual  for  Courts-Martial, 
by  Captain  John  Smith,  Medical  Corps.") 

I  have  not  examined  any  documentary  evidence. 

(Or,  if  such  be  the  case:  "The  following  documents  have  been  ex- 
amined and  shown  to  the  accused,4  and  (copies  thereof)  are  ap- 
pended.") 

(If  neither  the  documents  nor  copies  of  them  can  oe  appended,  then 
list  them,  and  state  where  they  can  be  found.)6 

Evidence  of  two  previous  convictions  of  the  accused  is  appended. 

Explanatory  or  extenuating  circumstances:  (Here  set  out  any  such 
circumstances  which  have  come  to  the  attention  of  the  investigating 
officer;  see  clause  10,  par.  76a,  M.  C.  M.) 

Disposition  of  the  case  which  is  recommended :  . 


Captain,  2d  Cavalry, 
Investigating  Officer* 


8  The  accused  will  not  be  sworn.  If  he  makes  a  statement  It  will  be  read 
over  to  him  and  he  will  be  offered  an  opportunity  to  sign  it  if  he  so  desires,  but 
will  not  be  required  to  do  so,  and  will  be  advised  that  it  is  not  necessary  for 
him  to  do  so.  (See  clause  8,  par.  76a,  M.  C.  M.) 

4  See  clause  8,'  par.  76a,  M.  C.  M. 

6  Bulky  documents  or  official  reports  will  ordinarily  not  be  appended  or 
copied,  but  listed  and  the  place  where  they  may  be  found  stated. 

•  While  this  form  may  be  used  by  the  investigating  officer,  it  is  to  be  regarded 
as  suggestive  only,  and  not  obligatory. 


649 


APPENDIX  19. 
SUBPGENA  FOR  CIVILIAN  WITNESS. 

The  President  of  the  United  States  to • ,  greeting: 

You  are  hereby  summoned  and  required  to  be  and  appear  in  per- 
son on  the  — day  of ,  191 — ,  at o'clock  — .  in.1  Ve- 

fore 1«  a  —  — 1»  designated  to  take  your  deposition  to  be  read 

In  evidence  before  a  * of  the  United  States,  at  —     — ,  appointed 

to  meet  by  paragraph • — ,  Special  Orders,  No.  ,  Headquar- 
ters -      — ,  dated  ,  191 — ,  then  and  there  to  testify  and  give 

evidence  as  a  witness  for  the in  the  case  of " ,  "  and  you 

are  hereby  required  to  bring  with  you,  to  be  used  in  evidence  in  said 

case,  the  following  described  documents,  to  wit:  . 

And  have  you  then  and  there  this  precept. 
Dated  at this day  of ,  191—. 

To  be  subscribed  by  trial  judge 
advocate,   recorder,   etc.) 

The  witness  is  requested  to  subscribe  on  one  copy  of  the  subpoena  the  follow- 
ing and  to  return  to  the  person  serving  the  subpoena  the  copy  thereof  so 
subscribed. 

• ,  -191—. 

I  hereby  accept  service  of  the  above  subpoena. 


Form  No.  76,  A.  G.  O.  (Signature  of  witness.) 

[Back.] 

Personally  appeared  before  me  the  undersigned  authority,  , 

who,  being  first  duly  sworn  according  to  law,  deposes  and  says  that 
at —  on  — ,  191 — ,  he  personally  delivered  to  in  per- 
son a  duplicate  of  the  witiiin  subpoena. 

Subscribed  and  sworn  to  before  me  at this  day  of 

,  191—. 


(Rank,  organization,     and  official  character.) 


1  Line  out  when  inappropriate  "before ,  a  :•'.!  to  take 

your  deposition  to  be  read  in  evidence." 

2  When  used,  enter  name,  rank,  and  organization,  if  any. 

8  When  used,  enter  official  chai^acter,  if  any,  such  as  trial  jud^e  advocate, 
summary  court,  notary  public,  etc. 

<<i(>noral   (or  special,  or  summary)   court-martial,  etc. 

*  Enter  name,  etc.,  of  accused  or  other  subject  c"  investigation. 

«  Line  out  when  inappropriate  "  and  you  are  hereby  required  to  bring  with 
you.  to  be  read  in  evidence  in  said  case,  the  following  described  documents, 
to  wit." 


APPENDIX  19. 

INSTRUCTIONS. 

1.  Articles     of    war. —  (a)  Process    to    obtain    witnesses. — Every 
trial  judge  advocate  of  a  general  or  special  court-martial  and  every 
summary  court-martial  shall  have  power  to  issue  the  like  process  to 
compel  witnesses  to  appear  and  testify  which  courts  of  the  United 
States,  having  criminal  jurisdiction,  may  lawfully  issue;  but  such 
process  shall  run  to  any  part  of  the  United  States,  its  Territories,  and 
possessions.     (A.  W.  22.) 

(b)  Refusal  to  appear  or  testify. — Every  person  not  subject  to  mili- 
tary law  who,  being  duly  subpoenaed  to  appear  as  a  witness  before 
any  military  court,  commission,  court  of  inquiry,  or  board,  or  before 
any  officer,  military  or  civil,  designated  to  take  a  deposition  to  be 
read  in  evidence  before  such  court,  commission,  court  of  inquiry,  or 
board,  willfully  neglects  or  refuses  to  appear,  or  refuses  to  qualify 
as  a  witness,  or  to  testify,  or  produce  documentary  evidence  which 
such  person  may  have  been  legally  subpoenaed  to  produce,  shall  be 
deemed  guilty  of  a  misdemeanor,  for  which  such  person  shall  be 
punished  on  information  in  the  district  court  of  the  United  States  or 
in  a  court  of  original  criminal  jurisdiction  in  any  of  the  territorial 
possessions  of  the  United  States,  jurisdiction  being  hereby  conferred 
upon  such  courts  for  such  purpose;  and  it  shall  be  the  duty  of  the 
United  States  district  attorney  or  the  officer  prosecuting  for  the 
Government  in  any  such  court  of  original  criminal  jurisdiction,  on  the 
certification  of  the  facts  to  him  by  the  military  court,  commission, 
court  of  inquiry,  or  board,  to  file  an  information  against  and  prosecute 
the  person  so  offending,  and  the  punishment  of  such  person,  on  con- 
viction, shall  be  a  fine  of  not  more  than  $500  or  imprisonment  not  to 
exceed  six  months,  or  both,  at  the  discretion  of  the  court :  Provided, 
That  the  fees  of  such  witness  and  his  mileage,  at  the  rates  allowed  to 
witnesses  attending  the  courts  of  the  United  States,  shall  be  duly  paid 
or  tendered  said  witness,  such  amounts  to  be  paid  out  of  the  appro- 
priation for  the  compensation  of  witnesses;  Proinded  further,  That 
every  person  not  subject  to  military  law,  who  before  any  court-mar- 
tial, military  tribunal,  or  military  board,  or  in  connection  with,  or  in 
relation  to  any  proceedings  or  investigation  before  it  or  had  under  any 
of  the  provisions  of  this  act,  Is  guilty  of  any  of  the  acts  made  punish- 
able as  offenses  against  public  justice  by  any  provision  of  chapter  G  of 
the  act  of  March  4,  1909,  entitled  "An  act  to  codify,  revise,  and  amend 
the  penal  laws  of  the  United  States"  (volume  35,  United  States 
Statutes  at  Large,  page  1088),  or  any  amendment  thereof,  shall  be 
punished  as  therein  provided.  (A.  W.  23.) 

2.  Tender  of  fees  preliminary  to  prosecution. — In  case  a  civilian 
witness  is  duly  subpoenaed  under  the  authority  of  A.  W.  22  and  will- 
fully neglects  or  refuses  to  appear  or  refuses  to  qualify  as  a  witness, 
or  to  testify  or  produce  documentary  evidence,  which  he  may  have 
been  legally  subpoenaed  to  produce,  he  will  at  once  be  tendered  or 


G51 


APPENDIX  19. 

paid  by  the  nearest  finance  officer  one  day's  fees  and  mileage  for 
the  journeys  to  and  from  the  court,  and  will  thereupon  be  again  called 
upon  to  comply  with  the  requirements  of  the  law.  Upon  failing  the 
second  time  to  comply  with  the  requirements  of  the  law,  a  complete 
report  of  the  case  will  be  made  to  the  officer  exercising  general  court- 
martial  jurisdiction  over  the  command  with  a  view  to  presenting  the 
facts  to  the  Department  of  Justice  for  the  punitive  action  contem- 
plated in  A.  W.  23.  (M.  C.  M.  172.) 

3.  Civilians  not  in  Government  employ. — A  civilian  not  in  Govern- 
ment employ,  duly  summoned  to  appear  as  a  witness  before  a  mili- 
tary court,  commission,  or  board,  or  at  a  place  where  his  deposition 
is  to  be  taken  for  use  before  such  court,  commission,  or  board,  will 
receive  $1.50  for  each  day  of  his  actual  attendance  before  such  court, 
commission,  or  board,  or  for  the  purpose  of  having  his  deposition  taken, 
and  5  cents  a  mile  for  going  from  his  place  of  residence  to  the  place 
of  trial  or  of  the  taking  of  his  deposition,  and  5  cents  a  mile  for 
returning,  except  as  follows: 

(a)  In  Porto  Rico  and  Cuba  he  will  receive  $1.50  a  day  while  in 
attendance,  as  above  stated,  and  15  cents  for  each  mile  necessarily 
traveled  over  stage  line  or  by  private  conveyance,  and  10  cents  for 
each  mile  over  any  railway  or  steamship  line. 

(&)  In  Alaska  east  of  the  one  hundred  and  forty-first  degree  of 
west  longitude  he  will  receive  $2  a  day  while  in  attendance  as  above 
stated  and  10  cents  a  mile,  and  west  of  said  degree  $4  a  day  and  15 
cents  a  mile. 

(c)  In  the  States  of  Wyoming,  Montana,  Washington,  Oregon,  Cali- 
fornia, Nevada,  Idaho,  Colorado,  Utah,  New  Mexico,  and  Arizona,  he  will 
receive  $5  a  day  for  the  time  of  actual  attendance  as  above  stated  and 
for  the  time  necessarily  occupied  in  going  to  and  returning  from  the 
same,  and  15  cents  for  each  mile  necessarily  traveled  over  any  stage 
line  or  by  private  conveyance,  and  5  cents  for  each  mile  by  any  railway 
or  steamship.  (M.  C.  M.,  par.  185.) 

[NOTE. — 1.  Travel  must  be  estimated  by  the  shortest  usually  traveled  route — 
by  established  lines  of  railroad,  stage,  or  steamer — the  time  occupied  to  be 
determined  by  the  official  schedules,  reasonable  allowance  being  made  for  un- 
avoidable detention. 

2.  These  rates  apply  to  the  Philippine  Islands.     (See  Cir.  45,  A.  G.  O.,  1902.) 

3.  A  civilian  not  in  Government  employ,  when  furnished  transportation  on 
transport  or  other  Government  conveyance,  is  entitled  to  57.142  per  cent  of  5 
cents  per  mile  (equal  to  2.857  cents  per  mile).     (Comp.  Dec.,  Aug.  20,  1902,  pub- 
lished in  Cir.  45,  A.  G.  O.,  1902.)] 

4.  Civilians  in  Government  employ. — Civilians  in  the  employ  of  the 
Government  when  traveling  upon  summons  as  witnesses  before  mili- 
tary courts  are  entitled  to  transportation  in  kind  from  their  place  of 
residence  to  the  place  where  the  court  is  in  session  and  return.    If  no 
transportation  be  furnished,  they  are  entitled  to  reimbursement  of  the 
cost  of  travel  actually  performed  by  the  shortest  usually  traveled 
route,  including  transfers  to  and  from  railway  stations  at  rates  not 


652 


SUBPOENA  FOR  CIVILIAN   WITNESS. 

exceeding  50  cents  for  each  transfer,  and  the  cost  of  sleeping-car 
accommodations  to  which  entitled  or  steamer  berth  when  an  extra 
charge  is  made  therefor.  They  are  also  entitled  to  reimbursement  >f 
the  actual  cost  of  meals  and  rooms  at  a  rate  not  exceeding  $3  per  day 
for  each  day  actually  and  unavoidably  consumed  in  travel  or  in  attend- 
ance upon  the  court  under  the  order  or  summons.  No  allowance  will  be 
made  to  them  when  attendance  upon  court  does  not  require  them  to 
leave  their  stations.  (M.  C.  M.t  par.  184.) 


21358°— 20 42 

653 


APPENDIX  20. 
WARRANT  OF  ATTACHMENT. 

UNITED  STATES] 

——I 

The  President  of  the  United  States  to ,  greeting: 

WHEREAS ,  of ,  was  on  the day  of  —  — ,  192 — , 

at  —  — ,  duly  subpoenaed  to  appear  and  attend  at  ,  on  the 

day  of ,  192 — ,  at o'clock  —  m.,  before  a  

court-martial  duly  appointed  by  paragraph  — ,  Special  Orders,  No.  — , 

dated  Headquarters , ,  192 — ,  to  testify  on  the  part  of  the 

in  the  above-entitled  case ;  and  whereas  he  has  failed  to  appear 

and  attend  before  said  court-martial  to  testify,   as  by  said 

subpoena  required,  and  whereas  he  is  a  necessary  and  material  wit- 
ness in  behalf  of  the in  the  above-entitled  case : 

Now,  THEREFORE,  by  virtue  of  the  power  vested  in  me,  the  under- 
signed, as  trial  judge  advocate  of 1  said court-martial,  by  arti- 
cle 22  of  Chapter  II  of  an  act  entitled  "An  act  to  amend  an  act 
entitled  'An  act  for  making  further  and  more  effectual  provision  for 
the  national  defense,  and  for  other  purposes,'  approved  June  3,  1916, 
and  to  establish  military  justice,"  approved  June  4,  1920  (41  Stat 
787),  you  are  hereby  commanded  and  empowered  to  apprehend  and 

attach  the  said wherever  he  may  be  found  within  the  United 

States,  its  Territories,  or  possessions,  and  forthwith  bring  him  before 

the  said court-martial  at to  testify  as  required  by  said 

subpoena. 

"~~» 

Trial  Judge  Advocate  of  said Court-Martial.' 

Dated , 

,  191— 

*  If  a  summary  court-martial,  line  out  the  words  "  trial  Judge  advocate  of." 

*  If  a  summary  court-martial,  line  out  and  substitute  the  necessary  words. 


654 


APPENDIX  21. 

EXEMPTIONS  FROM  THE  JURISDICTION  OF  SPE- 
CIAL AND  SUMMARY  COURTS-MARTIAL. 

GENERAL  OEDEBS,  "I  WAR  DEPARTMENT, 

No.  71.  Washington,  December  1,  1920. 

By  direction  of  the  President,  under  authority  of  the  thirteenth  and 
fourteenth  articles  of  war,  Chapter  II,  section  1,  act  of  Congress  ap- 
proved June  4,  1920,  the  following  regulations  exempting  certain 
classes  of  persons  from  the  jurisdiction  of  special  and  summary 
courts-martial,  are  published  to  the  Army  for  the  information  and 
guidance  of  all  concerned : 

1.  Effective  February  4,  1921,  the  following  classes  of  persons  are 
excepted   from    the   jurisdiction    of   special   courts-martial :  Officers, 
members  of  the  Army  Nurse  Corps,  warrant  officers,  Army  field  clerks, 
field  clerks  Quartermaster  Corps,  and  cadets. 

2.  Effective  February  4,  1921,  the  following  classes  of  persons  are 
excepted  from  the  jurisdiction  of  summary  courts-martial :  Noncom- 
missioned officers  above  the  rank  of  corporal ;  that  is,  enlisted  men  of 
a  grade  higher  than  the  "  fifth  grade,"  as  defined  by  section  I,  General 
Orders,  No.  36,  War  Department,  1920. 

3.  Noncommissioned  officers  sentenced  to  reduction  will  be  reduced 
to  the  grade  of  private,  and  not  to  the  grade  of  private,  first  class. 

(250.4,  A.  G.  O.) 
By  order  of  the  Secretary  of  War: 

PEYTON  C.  MARCH, 
Major  General,  Chief  of  Staff. 
Official : 

P.  C.  HARRIS, 

The  Adjutant  General. 


APPENDIX  22. 

FORM  A. 

HABEAS  CORPUS  BY  UNITED  STATES  COURT  (WHERE  A  WITNESS 
IS  HELD  UNDER  A  WARRANT  OF  ATTACHMENT). 

RETURN    TO   WRIT. 

In  re  — (name  of  party  held). 

(Writ  of  habeas  corpus — Return  of  respondent.) 

To  the (court  or  judge)  : 

The  respondent,  Maj. ,  United  States  Infantry,  upon 

whom  has  been  served  a  writ  of  habeas  corpus  for  the  production 

of  — ,  respectfully  makes  return  and  states  that  he  holds 

the  said —  by  authority  of  the  United  States,  pursuant  to 

a  warrant  of  attachment  issued  under  Chapter  II,  act  of  June  4,  1920, 
twenty-second  Article  of  War,  by  a  trial  judge  advocate  of  a  lawfully 
convened  general  (or  "special")  court-martial  (or  "by  a  summary 
court-martial " )  and  duly  directed  to  him,  the  said  respondent,  for  exe- 
cution ;  that  he  is  diligently  and  in  good  faith  engaged  in  executing  said 
warrant  of  attachment,  and  that  he  respectfully  submits  the  same  for 
the  inspection  of  the  court,  together  with  the  original  subpoena  and 
proof  of  service  of  the  same,  a  copy  1  of  the  order  appointing  the  court- 
martial,  sworn  to  as  such,  before  which  the  said has 

been  subpoenaed  to  testify,  a  copy  of  the  charges  and  specifications  in 

the  case,  sworn  to  as  such,  in  which  said is  a  witness, 

a  copy  of  the  order  referring  the  case  to  the  court  for  trial,  sworn  to 

as  such,  and  an  affidavit  of  — showing  that  said  — 

• is  a  material  witness  in  the  case;  that  he  has  failed  to  appear 

and  has  offered  no  valid  excuse  for  such  failure. 

In  obedience,  however,  to  the  said  writ  of  Jialeas  corpus  the  re- 
spondent herewith  produces  before  the  court  the  body  of  the  said 
— ,  and  for  the  reasons  set  forth  in  this  return  prays  this 
honorable  court  to  dismiss  the  said  writ. 


Major, United  States  Infantry. 

Dated  -     — , , 

,  192—. 

1  The  copy  of  the  order  appointing  the  court  and  of  the  charges,  and  of  the 
order  referring  the  case  for  trial,  will  be  sworn  to  by  the  triat  judge  advocate 
(or  summary  court-martial)  before  an  officer  authorized  to  administer  oaths. 


656 


FORMS. 
FORM  B. 

HABEAS  CORPUS  BY  STATE  COURT   (WHERE  WITNESS  IS  HELD 
UNDER  A  WARRANT  OF  ATTACHMENT). 

RETURN  TO   WRIT. 

(Make  return  as  in  case  of  writ  by  a  United  States  court,  supra, 
Form  A,  except  as  to  the  last  paragraph,  for  which  substitute  as 
follows:) 

And  said  respondent  further  makes  return  that  he  has  not  produced 

the  body  of  the  said  —  ,  because  he  holds  him  by  authority 

of  the  United  States  as  above  set  forth,  and  that  this  court  (or  "  your 
honor,"  as  the  case  may  be)  is  without  jurisdiction  in  the  premises, 
and  he  respectfully  refers  to  the  decisions  of  the  Supreme  Court  of  the 
United  States  in  Ableman  v.  Booth,  21  Howard,  506,  and  Tarble's  case, 
13  Wallace,  397,  as  authority  for  his  action,  and  prays  this  court  (or 
"your  honor.")  to  dismiss  the  writ. 


Major, United  States  Infantry. 

Dated , , 

FORM  C. 

HABEAS  CORPUS  BY  UNITED  STATES  COURT  (WHERE  PRISONER 
IS  HELD  FOR  TRIAL  OR  UNDER  SENTENCE). 

RETURN   TO   WRIT. 

In  re (name  of  party  held). 

(Writ  of  habeas  corpus — Return  of  respondent.) 

To  the (court  or  judge)  : 

The  respondent,  Maj. ,  United  States  Infantry,  upon 

whom  has  been  served  a  writ  of  habeas  corpus  for  the  production  of 
— ,  respectfully  makes  return  and  states  that  he  holds  the 

said by  authority  of  the  United  States  as  a  soldier  in  the 

United  States  Army  (or  "  as  a  general  prisoner  under  sentence  of  gen- 
eral court-martial  " )  under  the  following  circumstances : 

That  the  said was  duly  enlisted  as  a  soldier  in  the 

service  of  the  United  States  at , ,  on ,  192—, 

for  a  term  of years.  (If  the  offense  is  fraudulent  enlistment, 

this  recital  should  be  omitted.) 

(Here  state  the  offense.  If  it  is  fraudulent  enlistment  by  represent- 
ing  himself  to  be  of  the  required  age,  it  may  be  stated  as  follows:) 

That  on  the  -  -  day  of  « ,  192—,  at  —  — ,  the  said 

,  being  under  18  years  of  age,  did  fraudulently  enlist  in  the  mili- 

657 


APPENDIX  22. 

tary  service  of  the  United  States  for  the  term  of  years,  by 

falsely  representing  himself  to  be  over  18  years  of  age,  to  wit,  — 

years  and months ;  and  has,  since  said  enlistment,  received  pay 

and  allowances  (or  either)  thereunder. 

(If  the  offense  be  desertion,  it  may  ~be  stated  substantially  as 
follows:) 

That  the  said deserted  said  service  at ,  —     — , 

on  — ,  192 — ,  and  remained  absent  in  desertion  until  he  was 

apprehended  at  -      — ,  —   — ,  on  — ,  192 — ,  by  - 

— ,  and  was  thereupon  committed  to  the  custody  of  the  respondent 
as  commanding  officer  of  the  post  of  . 

The  said  —  has  been  placed  in  confinement  (or  "  arrest," 

as  the  case  may  be),  and  formal  charges  have  been  preferred  against 
him  for  said  offense,  a  copy  of  which  charges,  and  of  the  order  under 

which  said is  held  in  confinement  (or  "arrest,"  as  the 

case  may  be),  duly  certified  and  verified,*  are  hereto  annexed;  and 
that  he  will  be  brought  to  trial  thereon  as  soon  as  practicable  before 
a  court-niartial,  to  be  convened  by  the  commanding  general  of  the 
-  Department  (or  "convened  by  Special  Orders,  No.  — ,  dated 
Headquarters  —  -  Department,  192 — ,  a  copy  of  which,  duly  certi- 
fied and  verified,8  is  herein  annexed"). 

(If  the  party  held  isfa  general  prisoner,  the  folloiving  paragraph 
should  be  substituted  for  the  preceding  paragraph:) 

That  the  said was  duly  arraigned  for  said  offense 

before  a  general  court-martial,  convened  by  Special  Orders,  No.  —     — , 

dated  Headquarters Department,  192 — ,  was  convicted  thereof 

by  said  court,  and  was  sentenced  to  be ,  which  sentence  was  duly 

approved  on  the day  of ,  192 — ,  by  the  officer  ordering  the 

court  (or  "  by  the  officer  commanding  said Department  for  the 

time  being  " )  as  required  by  the  —  —  article  of  war.  A  copy  of  the 
order  promulgating  said  sentence,  duly  certified  and  verified,2  is  hereto 
attached. 

1  The  copies  of  the  charges  and  of  the  order  under  which  the  accused  is  held 
in  arrest,  or  confinement,  will  be  certified  by  the  adjutant  and  sworn  to  before 
an  officer  authorized  to  administer  oaths  for  military  administration,  in  the 
following  form  : 

I  hereby  certify  that  the  foregoing  is  a  full  and  true  copy  of  the  original 

charges  preferred  against ,  and  of  the  original  order  for  his 

arrest  (or  "  confinement,"  aa  the  case  may  be),  and  that  the  same  are  in  the 
usual  form  of  military  charges,  and  that  such  charges  and  order  conform  to 
the  rules  regulating  military  procedure, 

,  Adjutant. 

Sworn  to  and  subscribed  before  me  this day  of ,  192 — . 

Trial  Judge  Advocate  of  Court-Martial 

(Or  "Summary  Court-Martial"). 

The  copy  of  the  order  convening  the  court  or  publishing  the  sentence  will  be 
certified  and  verified  in  a  similar  manner. 


FORMS. 

In  obedience,  however,  to  the  said  writ  of  habeas  corpus  the  respond- 
ent herewith  produces  before  the  court  the  body  of  the  said 

,  respectfully  refers  to  the  decisions  cited  in  the  annexed  brief 

(if  the  case  does  not  involve  a  minor  under  the  required  age  the  words 
"  respectfully  refers  to  the  decisions  cited  in  the  annexed  brief  *'  will 
be  omitted),  and  for  the  reasons  set  forth  in  this  return  prays  this 
honorable  court  to  dismiss  the  said  writ 

United  States  Infantry. 
Dated 


FORM  D. 

HABEAS  CORPUS  BY  STATE  COURT  (WHERE  PRISONER  IS  HELD 
FOR  TRIAL  OR  UNDER  SENTENCE). 

BETUBN  TO  WRIT. 

(Make  return  as  in  case  a  writ  by  a  United  States  court,  except  as  to 
last  paragraph,  for  which  substitute  the  paragraph  set  out  in  Form  B, 
Appendix  22.) 

INSTRUCTIONS  AS  TO  RETUENS  TO  WRITS  OF  HABEAS   CORPUS. 

The  following  instructions  in  regard  to  returns  under  A.  R.  998  and 
999,  in  the  cases  of  soldiers  who  have  committed  military  offenses  and 
are  held  for  trial  or  punishment  therefor,  and  of  general  prisoners,  are 
for  the  information  and  guidance  of  all  concerned : 

1.  The  return  under  A.  R.  999  will  be  made  in  accordance  with  Form 
C  (Appendix  22),  and  if  the  person  whose  release  is  sought  has  com- 
mitted the  offense  of  fraudulent  enlistment  by  representing  himself  to 
be  of  the  required  age,  will  refer,  as  in  last  paragraph  of  that  form,  to 
the  brief  of  authorities  which  follows  these  instructions,  and  a  copy 
of  that  brief  will  be  annexed  to  the  return.    Should  the  court  order  the 
discharge  of  the  party,  the  officer  making  the  return,  or  counsel,  should 
note  an  appeal  pending  instructions  from  the  War  Department,  and 
he  will  report  to  The  Adjutant  General  of  the  Army  the  action  taken 
by  the  court  and  forward  a  copy  of  the  opinion  of  the  court  as  soon  as 
it  can  be  obtained. 

2.  The  return  under  A.  R.  998  will  be  made  in  accordance  with  Form 
D  (Appendix  22),  but  a  copy  of  the  brief  of  authorities  is  not  intended 
to  be  attached  to  the  returns  to  writs  of  habeas  corpus  issuing  from  a 
State  court. 


C59 


APPENDIX  22. 

BRIEF  TO  BE  FILED  WITH  A  RETURN  TO  A  WRIT  OF 
HABEAS  CORPUS  ISSUED  BY  A  UNITED  STATES  COURT 
IN  THE  CASE  OF  A  SOLDIER  WHOSE  DISCHARGE  IS 
SOUGHT  ON  THE  GROUND  OF  MINORITY. 

Tiie  right  to  avoid  the  contract  of  enlistment  of  a  soldier  on  the 
ground  of  minority  will  be  considered  under  the  following  heads:  L 
Under  the  common  law ;  II.  Under  the  statutes ;  III.  Where  the  minor 
is  held  for  punishment. 

I. 

UNDER  THE   COMMON  LAW. 

The  enlistment  of  a  minor  is  not  avoidable  by  the  minor  nor  by  his 
parent  or  guardian  at  common  law,  but  is  only  avoidable  where  the 
right  to  avoid  it  is  conferred  by  statute. 

This  proposition  is  clearly  established  by  the  decision  of  the  Supreme 
Court  (In  re  Morrissey,  137  U.  S.,  157,  159),  where  the  court  said : 

An  enlistment  is  not  a  contract  only,  but  effects  a  change  of 
status.  ( Grimley's  case,  137  U.  S.,  147. )  It  is  not,  therefore,  like 
an  ordinary  contract,  voidable  by  the  infant.  At  common  law 
an  enlistment  was  not  voidable  either  by  the  infant  or  by  his 
parents  or  guardians. 

The  court  cites,  in  support  of  these  statements,  Rex  v.  Rotherfield 
Greys  (1  Barn.  &  Cress.,  345,  350;  8  Eng.  C.  L.,  149)  ;  Rex  v.  Lytchet 
Hatraverse  (7  Barn.  &  Cress.,  226,  231;  14  Eng.  C.  L.,  107;  Common- 
wealth v.  Gamble  (11  Serg.  &  Rawle  (Pa.  R),  93)  ;  U.  S.  v.  Blakeney 
(3  Grattan,  387,  405.) 

In  Rex  v.  Rotherfield  Greys,  supra,  it  was  said  by  Best,  J. : 

By  the  general  policy  of  the  law  of  England  the  parental  au- 
thority continues  until  the  child  attains  the  age  of  twenty-one 
years ;  but  the  same  policy  also  requires  that  a  minor  shall  be 
at  liberty  to  contract  an  engagement  to  serve  the  State.  When 
such  an  engagement  is  contracted  it  becomes  inconsistent  with 
the  duty  which  he  owes  to  the  public  that  the  parental  authority 
should  continue.  The  parental  authority,  however,  is  suspended, 
but  not  destroyed.  When  the  reason  for  its  suspension  ceases 
the  parental  authority  returns. 

In  Rex  v.  Lytchet  Hatraverse,  supra,  Bayley,  J.,  after  quoting  these 
views  of  Best,  J.,  says : 

Lawrence,  J.,  in  Rex  v.  Roach  (6  T.  R.,  254),  seems  to  take  the 
same  view  of  the  subject  and  to  consider  the  authority  of  the 
State  paramount  to  that  of  the  parent  so  long  as  the  minor  con- 
tinues in  the  public  service,  but  as  soon  as  he  leaves  it  then  the 
parental  authority  is  restored. 

It  is  clear  from  these  authorities  and  others  which  could  be  cited 
that  at  common  law  the  enlistment  of  a  minor  of  sufficient  capacity 
to  bear  arms  was  valid  regardless  of  age.  The  right  of  the  State  to  the 
services  of  such  minors  is  forcefully  laid  down  in  Lanahan  v.  Biroe 
(30  Conn.,  438).  See  also  Cooley's  Constitutional  Law,  page  99,  where 


G60 


FORMS. 

on  the  authority  of  Ex  parte  Broivn  (5  Crunch,  C.  C.,  554;  Fed.  Cas., 
No.  1972),  and  United  States  v.  Bainbridge  (1  Mason,  71;  Fed.  Gas., 
No.  14497),  it  is  said: 

Minors  may  be  enlisted  without  the  consent  of  their  parents 
or  guardians  when  the  law  fails  to  require  such  consent. 

II. 

UNDER  THE  STATUTES. 

The  pertinent  statutes  are  the  following : 

SEC.  1116,  R.  S.  Recruits  enlisting  in  the  Army  must  be  ef- 
fective and  able-bodied  men,  and  between  the  ages  of  sixteen 
and  thirty-five  years  at  the  time  of  their  enlistment.  This  limi- 
tation as  to  age  shall  not  apply  to  soldiers  reenlisted. 

This  section  was  modified  by  the  act  of  March  2, 1899  (30  Stat,  978), 
which  provides : 

That  the  limits  of  age  for  original  enlistments  in  the  Army 
shall  be  eighteen  and  thirty-five  years : 

and  again  modified  by  section  7  of  the  selective  draft  act  of  May  18, 
1917  (40  Stat.,  76,  81),  and  by  Chapter  XIII  of  the  Army  appropriation 
act  of  July  9, 1918,  providing : 

That  the  qualifications  and  conditions  for  voluntary  enlist- 
ment as  herein  provided  shall  be  the  same  as  those  prescribed  by 
existing  law,  for  enlistments  in  the  Regular  Army,  except  that 
recruits  for  service  in  the  staff  corps  and  departments  may  be 
accepted  who  are  between  the  ages  of  forty-one  and  fifty-five 
years,  both  inclusive,  at  the  time  of  their  enlistment,  and  that 
all  other  recruits  must  be  between  the  ages  of  eighteen  and  forty 
years,  both  inclusive,  at  the  time  of  their  enlistment. 

SEC.  1117,  R.  S.  No  person  under  the  age  of  twenty-one  years 
shall  be  enlisted  or  mustered  into  the  military  service  of  the 
United  States  without  the  written  consent  of  his  parents  or 
guardians:  Provided,  That  such  minor  has  such  parents  or 
guardians  entitled  to  his  custody  and  control. 

This  section  is  replaced  by  the  provision  of  section  27,  national  de- 
fense act  of  June  3, 1916  (39  Stat.,  186),  which  reenacts  it  in  the  same 
words,  substituting  the  age  of  18  years  for  the  age  of  21. 

SEC.  1118,  R.  S.  No  minor  under  the  age  of  sixteen  years,  no 
insane  or  intoxicated  person,  no  deserter  from  the  military 
service  of  the  United  States,  and  no  person  who  has  been  con- 
victed of  a  felony  shall  be  enlisted  or  mustered  into  the  military 
service. 

This  proviso  was  not  changed  by  the  Army  reorganization  act  of 
June  4,  1920,  which  struck  out  of  section  27  of  the  national  defense 
act  (see  41  Stat.  775)  only  the  first  part  of  the  section,  up  to  and  in- 
cluding the  third  proviso,  but  did  not  affect  the  proviso  (fifth  proviso) 
here  in  question. 

1.  The  statutes  confer  no  right  upon  the  minor  to  avoid  his  enlist- 
ment, certainly  not  if  he  be  16  years  of  age  or  over.  No  case  has  been 
found  directly  in  point  holding  that  a  minor  under  16  years  of  aye,  if 
of  sufficient  capacity  to  bear  arms,  may  avoid  his  enlistment. 

661 


APPENDIX  22. 

Section  1116,  R.  S.,  as  amended,  prescribing  the  age  limits  of  original 
enlistment,  was  made  for  the  benefit  of  the  Government,  and  not  the 
minor.  (In  re  Morrissey,  137  U.  S.,  157 ;  In  re  Grimley,  137  U.  S.,  147 ; 
In  re  Wall,  8  Fed.  Rep.,  85 ;  In  re  Davison,  21  Fed.  Rep.,  618 ;  In  re 
Zimmerman,  30  Fed.  Rep.,  176 ;  In  re  Spencer,  40  Fed.  Rep.,  149 ;  In  re 
Lawler,  40  Fed.  Rep.,  233;  Solomon  v.  Davenport,  87  Fed.  Rep.,  318; 
Wagner  v.  Gibbon,  24  Fed.  Rep.,  135.) 

Section  1117,  R.  S.,  as  amended,  while  recognizing  the  right  of  the 
parent  to  the  services  of  the  minor,  confers  no  right  in  the  minor  to 
avoid  his  enlistment  See  the  cases  cited  above. 

In  the  Morrissey  case  the  Supreme  Court  of  the  United  States  said 
that  the  provision  of  section  1116,  R.  S., 

is  for  the  benefit  of  the  parent  or  guardian  *  *  *  but  it  gives 
no  privilege  to  the  minor  *  *  *  an  enlistment  is  not  a  con- 
tract only,  but  effects  a  change  of  status.  It  is  not,  therefore,  like 
an  ordinary  contract,  voidable  by  the  infant  *  *  *.  The 
contract  of  enlistment  was  good,  so  far  as  the  petitioner  is  con- 
cerned. He  was  not  only  de  facto  but  de  jure  a  soldier — amen- 
able to  military  jurisdiction. 

Whether  the  designation  of  the  age  limit  of  16  years  in  section  1118, 
R.  S.,  is  such  as  to  make  the  enlistment  of  the  minor  under  16  years  of 
age  void  or  voidable  by  the  minor  has  not  been  decided.  On  principle, 
the  minor,  if  of  sufficient  capacity  to  render  military  service,  should 
not  be  permitted  to  avoid  his  enlistment  obtained  through  his  fraudu- 
lent statements  as  to  his  age.  However  this  may  be,  if  the  minor  con- 
tinued to  serve  and  receive  pay  after  passing  that  age  he — 

acquires  the  status  of  a  soldier  like  one  who  was  enlisted  when 
over  16  years  without  the  consent  of  his  parents,  and  a  court- 
martial  has  jurisdiction  to  try  and  sentence  him  to  punishment 
for  desertion,  from  which  sentence  he  can  not  be  discharged  on 
habeas  corpus  on  petition  of  himself  or  his  parents.  (Ex  parte 
Hubbard,  182  Fed.  Rep.,  76.) 

2.  The  statutes  requiring  the  consent  of  the  parent  or  guardian  of 
a  minor  to  his  enlistment  (section  1117,  R.  S.,  amended  by  section  27, 
act  of  June  3,  1916)  impliedly  confer  upon  the  parent  or  guardian  the 
right  to  avoid  an  enlistment  entered  into  by  a  minor  under  the  pre- 
scribed age  'without  the  required  consent,  where  the  minor  is  not  held 
for  trial  or  punishment  for  a  military  offense. 

In  support  of  this  proposition  see  the  cases  cited  under  II,  propo- 
sition 1. 

3.  A  parent  or  guardian  with  knoioledge  of  the  enlistment  of  a  minor 
under  the  prescribed  age  and  acquiescing  therein  for  a  considerable 
period,  may  be  held  to  be  estopped  from  asserting  the  right  to  avoid 
the  enlistment. 

In  support  of  this  proposition  see  Ex  parte  Dunakin  (202  Fed.  Rep., 
290),  where  it  was  held,  quoting  from  the  syllabi: 

Where  a  minor  enlisted  without  the  consent  of  his  parent  or 
guardian,  and  his  mother,  who  was  his  surviving  parent,  on 


662 


FORMS. 

learning  of  his  enlistment  shortly  thereafter,  did  nothing  to 
repudiate  the  same  or  to  secure  his  release,  and  testified  that 
she  would  have  been  reconciled  to  it  had  he  remained  in  the 
Army  and  not  deserted,  hut  that  after  his  desertion  she  wanted 
to  keep  him  out  of  the  Army,  her  acts  constituted  an  implied 
consent  to  his  enlistment. 

4.  A  minor  fraudulently  enlisting  and  remaining  in  the  service  after 
alii.tining  the  legal  age  of  enlistment,  or  the  age  beyond  which  parental 
consent  is  not  required,  thereby  validates  his  enlistment. 

In  support  of  this  proposition  see  the  case  of  Ex  parte  Ilubbard  (182 
Fed.  Rep.,  76),  where  the  court  held,  quoting  the  syllabus: 

A  minor  enlisted  in  the  Army  when  under  the  age  of  16,  who 
has  continued  to  serve  and  receive  pay  after  passing  that  age, 
acquires  the  status  of  a  soldier  like  one  who  was  enlisted  when 
over  16  without  the  consent  of  his  parents,  and  a  court-martial 
has  jurisdiction  to  try  and  sentence  him  to  punishment  for 
desertion,  from  which  sentence  he  can  not  be  discharged  on 
habeas  corpus  on  petition  of  himself  or  Ms  parents. 

III. 

WHERE  THE  MINOR  IS   HELD  FOR  PUNISHMENT. 

Neither  the  minor  nor  his  parent  nor  guardian  may  avoid  the 
enlistment  where  the  soldier  is  held  for  trial  or  under  sentence  for  a 
military  offense. 

In  support  of  this  proposition  see  the  cases  cited  above  under  II, 
proposition  1,  and  also  the  following:  In  re  Kaufman  (41  Fed.  Rep., 
876)  ;  In  re  Dohrendorf  (40  Fed.  Rep.,  148)  ;  In  re  Cosenow  (37  Fed. 
Rep.,  668)  ;  In  re  Dowd  (90  Fed.  Rep.,  718)  ;  In  re  Miller  (114  Fed. 
Rep.,  838)  ;  United  States  v.  Reaves,  (126  Fed.  Rep.,  127)  ;  In  re  Les- 
sard  (134  Fed.  Rep.,  305)  ;  Ex  parte  Anderson  (16  Iowa,  595)  ;  McCon- 
ologue°s  case  (107  Mass.,  154,  170)  ;  In  re  Carver  (142  Fed.  Rep.,  623) ; 
lit'  re  Scott  (144  Fed.  Rep.,  79)  ;  DilUngham  v.  Booker  (163  Fed. 
Rep.,  696)  ;  Ex  parte  Rock  (171  Fed.  Rep.,  240)  ;  Ex  parte  Hubbard 
(182  Fed.  Rep.,  76)  ;  Ex  parte  Lewkowitz  (163  Fed.  Rep.,  646)  ; 
United  States  v.  Williford  <220  Fed.  Rep.,  291). 

The  reasons  given  for  these  decisions  are  that  the  enlistment  of  a 
minor  in  the  Army  without  the  consent  of  his  parent  or  guardian 
required  by  section  1117,  R.  S.,  "  is  not  void,  but  voidable  only  " ;  that 
the  soldier  being  not  only  de  facto  but  de  jure  a  soldier,  he  is  subject 
to  the  Articles  of  War  and  may  commit  a  military  offense ;  and  that  if 
held  for  trial  or  punishment  for  a  military  offense,  the  interests  of 
the  public  in  the  administration  of  justice  are  paramount  to  the 
right  of  the  parent  or  guardian,  and  require  that  the  soldier  abide 
the  consequences  of  his  offense  before  the  question  of  his  discharge 
will  be  considered  by  the  court.  In  the  Miller  case  (114  Fed.  Rep., 
842),  the  court  supported  its  holding  by  the  analogy  of  a  minor  held 
for  punishment  for  a  civil  offense,  saying: 


663 


APPENDIX  22. 

The  common  law,  unaided  by  statute,  fully  recognizes  the 
parents'  right  to  the  custody  and  services  of  their  minor  child ; 
but  it  has  never  been  held  that  they  could,  by  the  writ  of  habeas 
corpus  or  otherwise,  obtain  his  custody  and  his  immunity  when 
he  was  held  by  an  officer  of  a  civil  court  of  competent  jurisdic- 
tion to  answer  a  charge  of  crime.  His  enlistment  having  made 
the  prisoner  a  soldier  notwithstanding  his  minority,  he  is 
amenable  to  the  military  law  just  as  the  citizen  who  is  a  minor 
is  amenable  to  the  civil  law.  The  parents  can  not  prevent  the 
law's  enforcement  in  either  case  *  *  *. 

The  views  here  cited  were  approved  in  the  Reaves  case  (126  Fed. 
Rep.,  127),  where  upon  full  consideration  of  the  authorities  the  Circuit 
Court  of  Appeals  remanded  Reaves,  a  minor,  who  had  deserted  from 
the  Navy,  to  custody  of  the  naval  authorities  as  represented  by  the 
chief  of  police  who  had  apprehended  him.  In  the  Carver  case  (142 
Fed.  Rep.,  623),  the  syllabus  is  as  follows: 

A  minor  under  the  age  of  18  years  who  unlawfully  enlisted 
in  the  Army  without  the  consent  of  his  father  can  not  be  dis- 
charged from  the  service  on  a  writ  of  habeas  corpus  sued  out 
by  his  father  so  long  as  he  is  under  arrest  for  desertion  nor 
until  he  has  been  discharged  from  such  custody  or  has  served 
the  sentence  imposed  on  him  by  the  military  tribunal. 

In  the  Lewkmvitz  case  (163  Fed.  Rep.,  646),  the  syllabus  reads: 

A  minor  who  by  misrepresenting  his  age  has  fraudulently  en- 
listed in  the  Army  without  the  consent  of  his  parents  and 
thereby  subjected  himself  to  punishment  under  military  law  will 
not  be  relieved  from  such  punishment  by  the  civil  courts  by 
discharging  him  on  a  writ  of  habeas  corpus  on  the  application 
of  his  parents,  even  though  the  military  prosecution  is  not 
instituted  until  after  the  writ  was  issued. 

This  was  followed  by  the  unanimous  opinion  in  the  Circuit  Court 
of  Apeals  in  the  Love  case  (United  States  v.  Williford,  220  Fed.  Rep., 
291),  in  which  the  court  expressly  approved  the  view  stated  in  the 
Lewkowitz  case,  quoting  section  761,  R.  S.,  relating  to  procedure  under 
writs  of  habeas  corpus,  which  reads  as  follows : 

The  court,  or  justice,  or  judge  shall  proceed  in  a  summary 
way  to  determine  the  facts  of  the  case  by  hearing  the  testi- 
mony and  arguments  and  thereupon  to  dispose  of  the  party  as 
law  and  justice  require. 

The  court  added : 

Law  and  justice  do  not,  in  our  opinion,  require  Love  to  be 
withdrawn  from  the  military  authorities  and  relieved  of  liabil- 
ity for  his  offense  in  favor  of  his  mother's  right  to  his  custody. 

By  act  of  July  27,  1892  (27  Stat.,  278),  "  fraudulent  enlistment  and 
the  receipt  of  pay  or  allowance  thereunder "  was  made  a  military 
offense,  punishable  under  the  sixty-second  article  of  war.  The  offense 
is  now  defined  in  article  54,  revised  Articles  of  War,  approved  June 
4,  1920  (41  Stat.,  800),  which  provides  that  the  offense  "shall  be 
punished  as  a  court-martial  may  direct."  A  minor  who  procures  his 

G64 


FORMS. 

enlistment  by  willful  misrepresentation  or  concealment  as  to  his  quali- 
fications for  enlistment  commits  this  offense,  and  the  statute  authorizes 
his  punishment  therefor.  In  general,  it  may  be  stated  that  where  a 
minor  has  committed  a  military  offense  the  interests  of  the  public  in 
the  administration  of  justice  are  paramount  to  the  right  of  the  parent 
and  require  that  the  soldier  shall  abide  the  consequences  of  his 
offense  before  the  right  to  his  discharge  be  passed  upon.  The  soldier 
should  not  be  allowed  to  escape  punishment  for  his  offense,  even 
though  his  parents  assert  their  right  to  his  services.  A  minor  in  civil 
life  is  liable  to  punishment  for  a  crime  or  misdemeanor,  even  though 
his  confinement  may  interfere  with  the  rights  of  his  parents;  and  the 
above  authorities  clearly  apply  the  same  rule  to  a  minor  held  for  trial 
or  punishment  for  a  military  offense. 


665 


WAE  DEPARTMENT,   - 
Form  No.  338. 


APPENDIX  23. 

[Sheet  1.] 
WAR  DEPARTMENT. 

PUBLIC  VOUCHER. 


COMPENSATION,  CIVILIAN  WITNESS. 
Appropriation:  Pay,  etc.,  oj  the  Army,  192 

THE  UNITED  STATES  To ,  DR. 

Address: 


2    5 

I  I 


o  » 


Object 
Symbol. 


Amount. 


U.  S. 

notations. 


For  mileage  as  a  witness  from to and 

return,  being miles,  at cents  per  mile. . 

For  allowance  as  a  witness  while  in  attendance — 

On  a  court-martial  at 

Giving  deposition  at for  use  before  a  court- 
martial  from ,191    ,to ,191    ,  as  per 

certificate  hereon, days,  at  $  —  per  day — 

TOTAL 


I  CERTIFY  that,  as  stated  above,  I  attended  as  a  witness  for  the  period  named, 
and  as  such  the  travel  between  the  places  named  was  required. 


(PAYEE) 


(Do  not  sign  in  duplicate.) 


EXAMINED 


(Account  to  be  completely  filled  in  before  certification,  and  no  alteration  or  erasure  to  be 

made  thereafter.) 

1  CERTIFY  that ,  a  civilian  not  in  Government  employ, 

has  been  in  attendance  from ,  191     ,  to ,  191    . 

ias  a  material  witness  before  a court-martial  duly  ] 
convened  at  this  place,  giving  deposition  for  use  of  a  I   and 
court-martial  convened  under  attached  orders, 
that  he  was  duly  summoned  thereto  from M, ,  and  waa 


666 


FORMS. 

not  furnished  transportation  by  the  Government  for  any  portion  of  the 

journey. 

PLACE, 


DATE, ,  191  

(Title.) 


Paid  by  check  No ,  dated ,191     ,  of 

on ,  in  favor  of  payee  named  above  for  $ 

OR 

Received ,  191     ,  of ,  IN  CASH,  the  sum  of 

dollars  and cents,  in  full  payment  of  the  above  account. 


$ „ 


(  Thisjorm  to  be  used  only  for  payment  of  civilian  witnesses  not  vn  Government 

employ.} 


WAR  DEPARTMENT. 
Form  No.  338. 


APPENDIX  23. 

(Sheet  2.] 
WAR  DEPARTMENT. 

PUBLIC  VOUCHER. 


COMPENSATION,  CIVILIAN   WITNESS. 

Appropriation:  Pay,  etc.,  of  the  Army,  192    .  &  g,    j 

THE  UNITED  STATES,  To ,  DR.  '"  5 

Address:  e 

Amount.      __j 

For  mileage  as  a  witness  from to and 

return,  being miles,  at cents  per  mile — 

For  allowance  as  a  witness  while  in  attendance— 

On  a  court-martial  at 

Giving  deposition  at . .  .for  use  before  a  court-martial 

from ,191    ,to ,191    ,asper 

certificate  hereon, days,  at  $ per  day.. 

TOTAL 

EXAMINED 
BY 

MEMORANDUM  VOUCHER. 
(To  be  filled  in  and  retained  by  paying  officer.) 

Voucher  certified  by 

Voucher  approved  by 

Paid  by  check  No ,  dated ,  191     ,  of 

on ,  in  favor  of  payee  named  above  for  $ 

OR 

Paid  in  cash by dollars  and cents 

(Date.) 

Funds  derived  from  check  No on 

$.. 


(This  form  to  be.  used  only  for  payment  of  civilian  witnesses  not  in  Government 

employ.) 


668 


WAR  DEPARTMENT. 

Form  No.  350. 

A  pproved  by  Comptroller  of 
Treasury  July  25,  1919. 


APPENDIX  24. 

[Sheet  1.] 
WAR  DEPARTMENT. 


PUBLIC  VOUCHER. 


REIMBURSEMENT   OF   TRAVEL   EXPENSES. 

Appropriation: Item  No $ 

Appropriation: Item  No $ 

Appropriation: Item  No $ 

THE  UNITED  STATES  To ,  DR. 

Address:  . . 


FOE  REIMBURSEMENT  OF  TRAVEL  EXPENSES  incurred  in  the  dis- 
charge of  official  duty  from ,  19. .,  to , 

19- .,  under  written  authorization  from  the ,  dated 

,  19..,  a  copy  of  which  is as  per  item- 
ized statement  on  reverse  hereof 


AMOUNT  CLAIMED, 


DIFFER- 
ENCES. 


I  DO  SOLEMNLY  * that  the  above  account  and     EXAMINED   BY 

statement  on  reverse  hereof  are  true  and  correct;  that  the 

distances  as  charged  have  been  actually  and  necessarily 

traveled  by  me  on  the  dates  therein  specified;  that  the 

amounts  as  charged  have  been  actually  paid  by  me  for 

travel  expenses;  that  no  part  of  the  account  has  been  paid  by  the  United 

States,  and  the  full  amount  is  due;  that  all  expenditures  included  in  said 

account  other  than  my  own  personal  travel  expenses  were  made  under 

urgent  and  unforeseen  public  necessity,  and  that  it  was  not,  for  the  reasons 

stated  herein,    feasible  to  have  such  expenditures  paid  directly  by  a 

disbursing  officer. 


(PAYEE) 


(Do  not  sign  in  duplicate.) 


Subscribed  and  f 

day  of 


to  before  me  at 

,  A.D.19, 


.,  this 


*  Swear  or  affirm. 


t  Sworn  to  or  affirmed. 


21358°— 20 43 


6G9 


APPENDIX  24. 


I  CERTIFY  that  the  person  rendering  this  account  was  traveling  on  public 
business  under  proper  authority,  for  the  period  covered  by  this  account; 
that  I  believe  the  expenses  were  necessarily  incurred  and  paid  as  stated ; 
and  that  I  have  examined  the  account  which  is  hereby  approved  for  $ 

"("Title.")" 
Paid  by  check  No ,  dated ,  19..,  for  $ 

OR 

Received ,  19..,  of in  CASH,  the  sum 

(Date.) 

of dollars  and cents,  in  full  payment  of  the  above  account. 

(Do  not  sign  in  duplicate.) 
[Reverse  side  of  sheet  1.] 

Date,  19 Statement  of  expenditures.  voucher  No     -Ajnount'    Differences 

TOTAL,  S 

— T  -  •    •      •  -•         -"-•'-•     r--- 

MEMORANDUM    OF    TRAVEL    PERFORMED    UPON    TRANSPORTATION 

REQUESTS. 

No.  of 

From—  To—  Via  R.  R.       Amount.     Differences, 

request. 


670 


FORMS. 


[Sheet  2.] 

WA^M^RTMENT     WAR  DEPARTMENT. 

Approved  by  Comptroller  of  

Treasury  July  25, 1919. 

PUBLIC  VOUCHER.  ^    , 

REIMBURSEMENT   OF   TRAVEL   EXPENSES.         e 

Appropriation:  Item  No $ ....  §  i    ' 

Appropriation: Item  No $ .... 

Appropriation:  Item  No $ . 

THE  UNITED  STATES  To ,  DR. 

Address : 

For  reimbursement  of  travel  expenses  incurred  in  the  discharge  of  DIFFER- 

official  duty  from ,19..,  to ,19..,  under 

written  authorization  from  the ,  dated , 

19 . .,  a  copy  of  which  is as  per  itemized  statement  on 

reverse  hereof 

TOTAL,  S  

MEMORANDUM  VOUCHER.  EXAMINED 

BY— 

(To  be  filled  in  and  retained  by  paying  officer.) 

Voucher  certified  by 

Voucher  approved  by 

Paid  by  check  No ,  dated ,  19. .,  for  $ 

OR 

Paid  in  cash by ,  

(Date) 

dollars  and  . ,      . .  cents. 


671 


APPENDIX  24. 
(Reverse  side  of  Sheet  ?.) 


Date, 
19.... 

Statement  of  expenditures. 

Sub- 
voucher 
No. 

Amount. 

Differences. 

TOTAL,  $ 

:  



—  

MEMORANDUM    OF    TRAVEL    PERFORMED    UPON    TRANSPORTATION 

REQUESTS. 


Date  of 
travel. 

No.  of 
trans- 
portation 
request. 

From— 

To— 

ViaR.  R. 

Amount. 

Differences. 

672 


APPENDIX  25. 


[Sheet  1.] 

/TAR  DEPARTMENT 

Form  335. 

Approved  by  Comptroller  of  Treasury 
July  25, 1919. 

WAR  DEPARTMENT. 
PUBLIC  VOUCHER. 


PEESONAL   SEEVICES. 

Appropriation: Item  No $.... 

Appropriation: Item  No $ 

THE  UNITED  STATES  To ,  DR. 

Address : 


Desi 
Dis 


mp 
tion, 

sing 


Date. 


From—     To— 


Character  of  services. 


Num- 
ber of 
days. 


Rate. 


Amount. 


For. 


Under  authority  of. 

Dated ,19 

Per  attached  certified  statement,  Form 
335a,  which  is  hereby  made  a  part  of  this 
voucher  whenever  used. 


Less  deduction  for 

NET  AMOUNT  OF  THIS  VOUCHER. 


I  CERTIFY  that  the  above  bill  is  true  and  correct,  and  that  payment  thereof 
has  not  been  received,  or  (that  I  am  not  related  to  the  patient  named  on  certifi- 


cate;. 


EXAMINED 

BY 


(Do  not  sign  in  duplicate.) . 


673 


APPENDIX  25. 

I  CERTIFY  that was  employed  by  me  as  a  reporter 

for  a  ,  under  the  attached  authority,  and  that  the 

account  for  his  services  as  stated  is  correct. 


(Official  title.) 


APPROVED  for  $ 

(Title.) 

Other  certificates  not  appliea- 
Date ,  19 ble  to  reporter  are  omitted . 

Paid  by  check  No ,  dated ,  19..,  for  $ 

OR 

Received ,  19..,  of ,  in  CASH,  the  sum 

of dollars  and cents,  in  full  payment  of  the  above  account. 


(Do  not  sign  in  duplicate.') 
* 


674 


FORMS. 


WAR  DEPARTMENT. 
Form  335. 


(Sheet  2.) 

Approved  by  Comptroller  of  Treasury 
July  25,  1919 

WAR  DEPARTMENT, 


PUBLIC  VOUCHER. 


PERSONAL   SERVICES. 

lation: Item  No $ . 

Item  No $.. 


THE  UNITED  STATES  To ,  DR. 

Address:  . 


§   5 

f|I 
n!  I 

o 
c» 

o 


Date. 


Fr  om — 


Character  of  services. 


Num- 
ber of 
days. 


Rate. 


Amount. 


For 

Under  authority  of. 

Dated ,19.... 

Per  attached  certified  statement,  Form 

335a,  which  is  hereby  made  a  part  of  tbjs 

voucher  whenever  used. 
Less  deduction  for. . . . 


NET  AMOUNT  OF  THIS  VOUCHER. 


MEMORANDUM  VOUCHER. 

(To  be  filled  in  and  retained  by  paying  officer.) 


Voucher  certified  by.. 
Voucher  approved  by. 


EXAMINED  BY 


Paid  by  check  No ,  dated ,  19 ,  for$ 


673 


APPENDIX  25. 


WAR  DEPARTMENT  , 
Form  335-A. 


Approved  by  Comptroller  of  Treasury 
July  25,  1919. 

WAR  DEPARTMENT. 
STATEMENT  OF  PERSONAL  SERVICES. 


RENDE1 

THE  UNIT* 

IED  AS    SHOWN  IN   DETAIL   BELOW. 
:D  STATES  To  ,  DR. 

o 

(i) 
Date. 

(2) 

Character  of  services 
rendered. 

(3) 

To  whom  rendered. 
Disease  or  disability. 

(4) 
Rate. 

(5) 
Amount. 

From— 
19  

To— 
19  

(This  statement  must  be  completely  made  out  by  payee  before  certification 
and  attached  to  voucher.  There  must  be  no  alteration  or  erasure.} 

I  CERTIFY  that  the  above  statement  is  true  and  correct,  and  that  the 
amounts  are  the  customary  charges  and  not  excessive. 


See  reverse  side  for  information. 

INSTRUCTIONS  FOR  PREPARING  STATEMENT  ON  FORM  335-A. 

This  statement  must  be  made  in  duplicate,  showing  in  detail — 
Column  1. — Inclusive  dates  of  sarvices. 

Column  2. — To  whom  the  services  were  rendered,  giving  rank,  com- 
pany, regiment,  or  organization,  where  necessary. 
Column  3. — Character  of  services.     If  for  medical  attendance  of  any 
kind,  or  nursing,  state  necessity  for  such  services, 
also  kind  of  disease  or  disability;  if  for  clerical,  tech- 
nical, or  professional  services,  state  classification;  if 
for  court  reporting,  give  number  of  hours  or  number 
of  words  in  hundreds. 
Column  4. — Rate  of  pay  for  services  when  on  per  diem  basis;  per 

hour  or  per  hundred  words  if  for  official  reporter. 
Column  5. — Total  amount  of  compensation. 

If  this  voucher  is  for  payment  of  reward  for  apprehension  and  delivery  of 
deserter  or  escaped  military  prisoner,  so  state  in  column  2,  and  give  full 
name  of  deserter  or  escaped  prisoner,  also  company,  regiment,  or  organiza- 
tion in  column  3. 


676 


APPENDIX  26. 
REPORT  OF  INQUEST. 


summary  court-martial. 


To :  Commanding  officer. 

Subject :  Report  of  inquest  over  body  of ,  deceased. 

1.  Pursuant  to  your  letter  (or,  your  oral  instructions)  of ,  I 

viewed  on  the  -       —  day  of  ,  the  body  of  -      — ,  found  dead 

at  this  post,  and  have  examined  the  following  witnesses,  whose  testi- 
mony is  appended  to  this  report : 


2.  From  a  view  of  the  body  and  from  the  evidence  before  me  I  find 

that  at  or  about m.,  on  the  —    —  day  of  —     —  (or,  on  or  about 

the  —      —  day  of ) . ,  a of , Regiment 

of—  —  (or,  a  civilian),  died  a  natural  death  (or,  committed  sui- 
cide ;  or,  was  accidentally  killed  in  manner  and  circumstances  as  fol- 
lows ;  or,  was  killed  by  —  —  or  by  some  person  or  persons  unknown, 
in  manner  and  circumstances  as  follows:  (or  otherwise,  as  the  case 
may  be). 


677 


APPENDIX  27. 

IRREGULARITIES  AND  ERRORS  IN  COURT- 
MARTIAL  TRIALS. 

The  following  list  of  irregularities  and  errors  in  records  of  proceed- 
ings before  courts-martial  is  not  intended  to  be  complete  or  exhaustive. 
It  is  appended  for  the  purpose  of  pointing  out  those  irregularities  and 
errors  that  have  been  most  common,  and  of  specifically  warning 
against  them.  Most  of  the  irregularities  and  errors  contained  in  this 
list  result  from  carelessness  or  oversight.  No  attempt  has  been  made 
to  classify  them.  Some  of  them  are  not  serious ;  but  they  should  not 
occur. 

I.  The  record  is  not  accompanied  by  the  order  referring  the  case  to 
the  court  for  trial. 

•    2.  The  record  shows  that  the  accused  was  tried  by  a  different  court 
from  that  to  which  the  case  was  referred  by  the  convening  authority. 

3.  No  report  of  investigation  of  the  charges  accompanies  the  record. 

4.  Charge  sheet  missing. 

5.  Allotments  not  entered  on  charge  sheet. 

6.  Record  not  briefed  on  back  as  required  by  Appendix  10,  M.  C.  M. 

7.  Index  incomplete  or  not  in  proper  form. 

8.  Army  serial  number  of  accused  omitted. 

9.  Variance  between  Army  serial  number  of  accused  as  shown  in  the 
charge  sheet  and  as  shown  in  the  record  of  trial. 

10.  Variance  in  initials  or  names  of  members  of  the  court,  the  trial 
judge    advocate,    assistant    trial    judge    advocate,    defense    counsel, 
assistant  defense  counsel,  or  witnesses,  in  different  parts  of  the  record. 

II.  The  record  shows  that  an  officer  who  had  officially  recommended 
that  the  accused  be  tried  by  court-martial  sat  as  a  member  of  the  court 
by  which  the  accused  was  tried. 

12.  The  record  shows  that  an  officer  who  subscribed  the  charges  sat 
as  a  member  of  the  court  by  which  the  accused  was  tried. 

13.  The  record  shows  that  a  member  of  the  court  who  testified  as  a 
witness  for  the  prosecution  continued  to  sit  as  a  member  of  the  court. 

14.  Variance  in  rank  of  members  of  the  court  shown  in  different 
parts  of  the  record,  without  any  copy  of,  or  reference  to,  any  order 
showing  changes  in  rank. 

15.  The  record  does  not  show  that  the  accused  was  informed  of  his 
right  to  demand  a  copy  of  the  record  of  his  trial,  or  that  he  was  asked 
whether  or  not  he  desired  a  copy  thereof. 

16.  No  receipt  of  the  accused  for  a  copy  of  the  record  of  trial,  or 
affidavit  of  delivery  of  it  to  him,  is  appended  to  the  record. 


678 


ERRORS  IN  COURT-MARTIAL  TRIAL. 

17.  The  record  does  not  show  that  a  member  of  the  court  who  was 
challenged  withdrew  when  the  vote  on  the  challenge  was  taken  by 
the  court. 

18.  The  record  does  not  show  that  the  order  appointing  the  court  and 
each  amendatory  order  was  read  to  the  accused. 

19.  The  record  does  not  affirmatively  show  that  the  accused  was 
afforded  the  right  to  challenge  each  member  of  the  court  (including  his 
right  to  one  peremptory  challenge). 

20.  The  record  shows  that  an  officer  sat  as  a  member  of  the  court 
without  apparent  authority,  i.  e.,  the  record  contains  no  order  detailing 
him  as  such. 

21.  The  record  does  not  show  that  all  members  of  the  court,  the  trial 
judge  advocate,  the  assistant  trial  judge  advocate,  the  reporter,  and 
the  interpreter  were  sworn. 

22.  Offenses  charged  under  wrong  Articles  of  War. 

23.  One  or  more  specifications  constitute  unnecessary  duplication  of 
charges. 

24.  The  name  of  the  person  signing  the  charges  is  not  shown  by  the 
record. 

25.  The  oath  to  the  charges  is  not  copied  into  the  record. 

26.  The  grade  and  organization  of  the  person  signing  the  charges  are 
not  shown  by  the  record. 

27.  The  words  "  officer  preferring  charge,"  or  "  by  order  of  "  a  com- 
manding officer,  or  other  unnecessary  or  prohibited  words,  are  used  in 
connection  with  the  signature  of  the  person  signing  the  charges. 

28.  The  record  does  not  show  that  the  accused  entered  a  separate 
plea  to  each  charge  and  specification. 

29.  The  pleas  of  the  accused  are  irregular  in  form,  e.  g.,  "  not  guilty 
of  desertion,  but  guilty  of  absence  without  leave." 

30.  The  record  does  not  show  that  the  accused  was  properly  or 
sufficiently  instructed  in  regard  to  the  effect  of  a  plea  of  guilty  and  the 
maximum  penalty  for  the  offenses  charged. 

31.  In  a  proper  case,  i.  e.,  one  in  which  the  accused  makes  a  state- 
ment  inconsistent  with  his  plea  of  guilty,  or  qualifies  his  plea  of 
guilty,  the  record  does  not  show  that  the  court  ordered  the  accused's 
plea  of  guilty  changed  to  a  plea  of  not  guilty. 

32.  The  record  does  not  show  that  the  paragraphs  of  the  Manual  for 
Courts-Martial  that  set  out  the  gist  of  the  offense  or  offenses  charged 
against  the  accused  were  read  to  the  court  by  the  trial  judge  advocate ; 
or  does  not  specifically  show  which  paragraphs  or  parts  of  paragraphs 
were  read ;  or  shows  that  the  wrong  paragraphs  were  read. 

33.  The  record  fails  to  show  that  each  witness  was  sworn. 

34.  The  record  does  not  show  that,  before  testifying,  each  witness 
for  the  prosecution  was   required  by   the   trial   judge   advocate   to 
identify  the  accused,  as  required  by  paragraph  250,  M.  C.  M. 

35.  The  record  fails  to  show  that  the  accused  is  a  person  subject  to 
military  law. 


G79 


APPENDIX  27. 

36.  The  record  shows  that  a  witness  was  recalled  and  permitted  to 
testify  without  being  reminded  that  he  was  still  under  oath. 

37.  Clearly  improper  evidence  admitted  by  the  court,  e.  g.,  the  ad- 
mission of  a  confession  without  proper  foundation,  or  the  admission 
of  a  deposition  in  a  capital  case. 

38.  The  record  does  not  show  that  the  court  ruled  on  an  objection 
to  evidence. 

39.  The  record  fails  to  show  that  the  law  member  (or  the  president 
of  the  court)  explained  to  the  accused  his  rights  as  a  witness;  or  that 
he  did  so  properly. 

40.  The  record  does  not  show  that  the  prosecution  rested. 

41.  The  record  shows  that  the  trial  judge  advocate  made  use  of 
improper  argument,  e.  g.,  that  he  commented  upon  the  failure  of  the 
accused  to  testify  in  his  own  behalf. 

42.  The  record  does  not  show  that  the  court  made  any  findings 
upon  one  or  more  of  the  charges  or  specifications. 

43.  The  findings  of  the  court  are  not  in  proper  form,  e.  g.,  "not 
guilty  of  desertion,  but  guilty  of  absence  without  leave." 

44.  The   record   shows   that   evidence   concerning  previous   convic- 
tions of  the  accused  was  read  to  the  court  before  the  court's  find- 
ings were  made. 

45.  Although  the  trial  judge  advocate  was  present  at  the  trial,  the 
record  is  authenticated  by  the  assistant  trial  judge  advocate,  and  con- 
tains no  statement  that  the  trial  judge  advocate  could  not  authenti- 
cate the  record  on  account  of  his  death,  disability,  or  absence. 

46.  Interlineations  or  corrections  in  the  record  are  not  initialed  by 
the  trial  judge  advocate  or  by  the  person  by  whom  they  were  made. 

47.  Exhibits  missing  from  record. 

48.  A  specification  is  incomplete  or  legally  insufficient  because  of  the 
omission  of  some  necessary  allegation,  e.  g.,  the  allegation  that  the 
act  described  was  committed  unlawfully  or  feloniously,  or  because 
it  does  not  allege  every  essential  element  of  the  offense  sought  to  be 
charged. 

49.  The  record  fails  to  show  that  the  accused  had  (1)  no  evidence 
(or  no  further  evidence)   to  offer,  or  (2)  no  statement   (or  further 
statement)  to  make,  or  (3)   no  argument  (or  further  argument)   to 
offer. 

NOTE. — This  appendix  should  be  included  in  the  courses  of  instruction  in 
the  Manual  for  Courts-Martial  at  officers'  schools. 


C80 


INDEX. 

[References  are  to  paragraphs,   except  that   the  letter   "  p "   Indicates   page, 
"A.  W. '  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

It  being  impossible  to  index  every  paragraph  In  every  possible  logical  place, 
the  Index  aims  to  be  as  specific  as  possible.  Consult,  therefore,  the  more 
specific  heads — e.  g.,  for  Depositions,  look  under  "  Depositions,"  and  not  under 
"  Evidence." 


Abandoned  property.     (See  Property.) 

Abandoning  or  delivering  up  command :  Par. 

Analysis  and  proof  of  offenses 425,  p.  377 ;  A.  W.  75 

Definitions  and  principles 425,  p.  378 

Forms  for  specifications App.  6 

Abandonment  of  wife  and  children: 

Wife  may  testify  against  husband  accused  of 228 

Abatement,  pleas  in.     (See  Pleas.) 

Abbreviations  used  in  Manual  for  Courts-Martial xxvii 

Absence : 

Of  appointing  authority,  who  may  act  during 369 ;  A.  W.  46 

Of  area  or  department  commander  for  any  considerable 

period,   effect 18 

Of  member  of  court-martial — 

Excuse,    report 85 

Procedure  upon  his  return 93 

Absence  with  leave: 

Of  area  or  department  commander,  effect  on  appointing 

powers 18 

When  converted  into  absence  without  leave  because  of  civil 
arrest 412 

Absence  without  leave  (see  also  Desertion)  : 

Analysis  and  proof  of  offense 412 ;  A.  W7.  61 

As  joint  offense,  proof  necessary 69 

Definitions  and  principles 412 

Finding  of,  on  charge  of  misbehavior  before  enemy 300 

Forms  for  specifications App.  6  (26-28) 

Ignorance  of  detail  as  defense  for  not  reporting 283 

Interrupts  execution  of  sentence 401 

Method  of  finding  or  pleading,  on  charge  of  desertion 298 

Methods  of  proof  of,  enumerated 284 

Morning  report,  entries  in,  as  proof  of 284 

No  statutory  intent  described  in  A.  W.  61  nor  to  be  alleged.      281 

Periods  of  24  hours  equal  1  day 412 

Presumption  of  continuance  and  of  intent 284 

Proof  of,  establishes  corpus  delicti  of  desertion 225 (c) 

Routine  duties  missed  during,  not  separately  punishable 66 

Time  lost  to  be  made  good 38(note)  ;  A.  W.  107 

Trial  for  desertion  after  trial  for 149(3)  (e) 

681 


682  INDEX. 

[References  are  to   paragraphs,   except  that  the  letter  "p"  indicates  page. 
"  A.  W."  indicates  Articles  of  War,  ana  "  App."  indicates  Appendix.] 

Par. 

Abuse,  defined 438 

Accomplice   (see  also  Conspiracy)  : 

Acts  and  statements,  when  admissible  against  each  other_  217,  224 

Confession  as  ground  for  pardon  or  milder  punishment 216 

Must  first  waive  his  privilege  before  testifying 217 

Nolle  prosequi,  to  secure  testimony  of 217 (notes) 

Account,  books  of: 

Use;    conditions,    refreshing    recollection,    authentication, 

originals 244 

Accounts,  proof  of 237 

Accouterments.     (See  Military  property.) 

Accused.     (See  also  generally  throughout  index  the  more  spe- 
cific titles)  : 

Army  serial  number  should  be  adduced  at  trial p.  605  (22)  ; 

p.  621  (note  7) 
Arrest.     (See  Arrest.) 

As  witness  for  self,  failure  to  take  stand  can  not  be  com- 
mented on 214 (c) 

As  witness  for  self,  noted  in  record 357  (b)  (28) 

As  witness  for  self,  scope  of  cross-examination 214 

As  witness  for  self,  status  like  any  other  witness 214 (a)  262 

As  witness  for  self,  statute  permitting  cited 214 

Asked  as  to  desire  to  have  defense  counsel  act 108 

Character  of.     (See  Character  evidence.) 

Charges.     (See  Charges.) 

Civil    authorities,    delivery    to;    when    required,    penalty 

for  refusal 35,  424 ;  A.  W.  74 

Confession.     (See  Confessions.) 
Confinement.     (See  Confinement.) 

Confronted  with  witnesses,  when  to  be 165 ;  A.  W.  25 

Considerations   respecting,   in    determining   place   of   con- 
finement  342,  342a 

Copy  of  record  for;  inquiry,  receipt 117,  366 (b) 

Counsel.     (See  Counsel;  Defense  counsel.) 

Court-martial    has    no    control    of   person   of,    except    in 

its  presence 47(c),87 

Cross-examination    of    witnesses,    opportunity    for,    noted 

in  record 357 (b)  (30) 

Examination  by  medical  board,  when  proper 76c 

Explanation    to,     of    right    to    testify    or    make    state- 
ment  215,  357 (b)  ;  (34)  ;  App.  9,  p.  610 

Freedom  of  expression  in  statement  to  court 291 

How  described  in  charge  and  specification 74 (b)  (h)  (i) 

Identification — 

Care  requisite;  specific  modes  enumerated 250 

Elements,  care  if  disputed 223  (a) 


INDEX.  683 

f References  are  to  paragraphs,   except  that  the  letter  "p"  Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Accused— Continued. 

Identification— Continued.  Par. 

Prior  to  trial  by  witness  of  greatest  value 223 (a) 

Questions  by  trial  judge  advocate  to  establish p.  605  (22) 

Informing  court  as  to  member  being  accuser  or  witness 129 

Insanity.     (See  Insanity,  etc.,  of  accused.) 

Interviews  with  counsel   permitted 110 

Investigation  of  charges,  rights  upon,  in  general 76a 

Irons,  not  ordinarily  to  be  tried  in 88 

Officer  having  custody  or  command  responsible  for 47(b,c) 

Pleas.     (See  Pleas.) 

Presence  at  open  sessions  to  be  shown  in  record 85,  357  (b)  (11) 

Presence  or  absence  at  proceedings  in  revision 352,  357 (b)  (11) 

Procedure  where  not  testifying  or  making  statement-  215 ;  App.  6 

Refusal  to  plead,  procedure 155 ;  A.  W.  21 

Self-crimination.     (See  Self -crimination.) 

Trial  judge  advocate  has  no  control  of  person  of 47 (b) 

Uniform  to  be  worn  at  court 82 

Where  seated  in  court 83 

Witnesses  requested  by,  duties  of  defense  counsel 161 

Accuser : 

Challenge,  ground  for 121,125 

Convening  authority  as ;  discussed,  as  defense,  procedure-  17,  22 
Convening  authority  of  general  or  special  court  can  not  be_  14,  21 

Counsel  for,  should  be  allowed  in  court  of  inquiry 463 

Form  for  affidavit  on  charge  sheet App.  5,  p.  561 

Ineligible    as    member    of   general    or    specaal    court-mar- 
tial  6(a),  129;  A.W.8,9 

Member  as ;  ineligible,  making  fact  known,  excuse.  129 ;  A.  W.  8, 9 

Member  as,  question  of  fact ;  invalidity  of  proceedings 130 

Member  signing  and  swearing  to  charges;  procedure 130 

Trial  judge  advocate  as,  relief 102 

Where   only  officer   present   with  command,   as   summary 
court 6 (a)  ;  A.  W.  10 

Acquittal: 

Announcement  in  open  court 332a 

At  close  of  prosecution's  case ;  procedure 158c 

Former,  for  same  offense,  how  proved 274 

General  principles  applicable  to  findings 297 

*'  Guilty  without  criminality  "  equivalent  to 303 

Joint  changes ;  procedure  where  also  conviction 301 

Nolle  prosequi  is  not  equivalent  to 158 

Not  a  "  sentence  "  nor  approved,  confirmed,  or  disapproved-  372 (b) 
On  lack  of  requisite  number  of  votes  required  for  conviction      294 

Privilege  of  self -crimination  ceases  upon 233  (a) 

Record,  general  and  special  courts-martial 357 (b)  (46),  358 

Record,    summary    court-martial 351  (i).  363 

Release  from  confinement  or  arrest  upon 332a,  371 

Return  of  record  for  reconsideration  prohibited-  352,  372  ;  A.  W.  40 


684  INDEX. 

[References  are   to  paragraphs,   except  that  the  letter  "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Acting  judge  advocate : 

Oaths  for   administrative  purposes  may  be   administered     Par. 

by 138  (b );  A.W.  114 

Powers  of  notary  public  or  consul  in  foreign  places  where 
Army    serving 138 (b)  ;  A.  W.  114 

Action  by  reviewing  authority.     (See  Reviewing  authority.) 

Additional  charges  defined;  when  tried  separately;  when  tried 

with  original  charges —        73 

Adjournment  of  court-martial : 

Duties  of  trial  judge  advocate  during  or  at  close  of  trial —  App.  8 

Power  of  general  or  special  court-martial  to  adjourn 81 

Records  of  general  and  special  courts  to  show 357 (b)  (52) 

Adjutant  of  a  command : 

Oaths  for  administrative   purposes  may   be  administered 

by 138 (b)  ;  A.  W.  114 

Powers  of  notary  public  or  consul  in  foreign  places  where 
Army  serving 138 (b)  ;  A.  W.  114 

Adjutant  General,  The.    (See  The  Adjutant  General,  reports  to.) 

Admission  against  interest  (see  also  Confessions)  : 

Distinguished  from  confession;  examples 226 

On  statement  of  accused,  how  far  considered 292 

Admonition : 

As  disciplinary  punishment,  proper 333 ;  A.  W.  104 

By  president  of  court-martial  to  members 86 

Legal  sentence  for  officer 310 

Advising  desertion : 

Analysis  and  proof  of  offense 410 ;  A.  W.  59 

Capital  offense  in  time  of  war;  any  other  punishment  in 

peace 41 ;  A.  W.  59 

Definitions  and  principles 410 

Forms  for  specifications App.  6(23) 

Lesser  included  offense  in  desertion 377 

Aero  squadron,  when  a  detachment  for  disciplinary  purposes 28 

Affidavit  (see  also  Oath)  : 

Not  admissible  as  deposition  unless  expressly  consented  to_      269 
Person  making  in  general  court-martial  charges  named  in 

record 357(b)  (19) 

To  charges  and  specifications ;  who  may  administer ;  form, 

75,  75 (note)  ;  A.  W.  70 ;  App.  5,  p.  561 

To  charges,  copied  into  record 64 

To  charges,  forms  on  charge  sheet App.  5,  p.  561 

Affinity  as  ground  for  challenge 121 

Affirmation  (see  also  Oath)  : 

Closing  sentence  of  adjuration  in  oath  omitted  in 132 ;  A.  W.  19 

Oath    includes,   where    affirmation    authorized   in    lieu   of 
oath 443,  p.  434 


INDEX.  685 

[References  are  to  paragraph^   except  that  the  letter  "p"  indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Affray,  lesser  included  offenses ;  assault  and  breach  of  peace 377 

Agreement,  fraudulent.     (See  Conspiracy.) 

Aider  of  defective  specification 158a 

Aiding  desertion.    (See  Assisting  desertion.) 

Alaska : 

Double  jeopardy  rule  in 149 (3)  (d) 

Fees  and  mileage  of  civilian  witnesses  in 185 (b) 

Trial  in  either  civil  or  military  court  in,  bar  to  trial  in 
other  for  same  offense _ 149(3)  (d) 

Alias,  how  pleaded 74 (i) 

Allotments  : 

Compulsory  (Class  A)  may  not  be  detained  or  forfeited 311 

Voluntary  (Class  B)  may  not  be  detained  or  forfeited 811 

Alternative  pleading  improper 74  (c) 

Ammunition :. 

Casting  away ;  offense  stated,  proof 425,  p.  380;  A.  W.  75 

Casting  away  ;  form  for  specification : App.  6(57) 

Wasting  of,  offense  stated,  proof 434 ;  A.  W.  84 

Wasting  of,  form  for  specification App.  6(74) 

Ammunition  train,  when  a  detachment  for  disciplinary  pur- 
poses         28 

Amnesty  (see  also  Pardon) : 

Evidence  of,  as  basis  of  plea  in  bar ;  how  offered,  other  evi- 
dence       273 

Privilege  against  self-crimination  ceasing  on 233 (a) 

Appeal : 

From  courts-martial  to  civil  courts  not  permitted 33, 33a 

From  disciplinary  punishment ;  effect,  contents,  procedure.      833, 

335 ;  A.  W.  104 
From  disciplinary  punishment ;  no  witnesses  heard 335 

Appointing  authority  (see  also  Reviewing  authority). 

Absence  of  law  member,  can  direct  to  proceed  in 85 

Action  as  to  offenders  against  laws  of  community 35 

Adding  to  membership  of  general  court-martial 7 (a)  (notel) 

Appointment  of  law  member 81,  89 (a)  ;  A.  W.  8 

Appointment  of  medical  board ;  action  thereon 76c 

Appointment  of  trial  judge  advocate,  defense  counsel,  and 

their   assistants 81 

Arrest  of  officer  without  charges,  report  to 50 

As  "  accuser  "  or  "  prosecutor  "  ;  discussed,  as  defense,  pro- 
cedure  17,  22 

Authority  to  add  members  to  general  court-martial-  7 (a)  (note 3) 

Authority  to  add  members  to  special  court-martial 7(b) 

Change  of  membership  of  court  during  trial,  power  of 93 

Consults  staff  judge  advocate  on  questions  raised  by  trial 

judge  advocate 158d 

21358°— 20 44 


686  INDEX. 

[References  are  to   paragraphs,   except   that   the   letter   "p"    indicates   r 
"A.  W."  indicates  Articles  of  War,  and  "  App."  iudicat.es  Appendix.] 

Appointing  authority — Continued.  r«r. 

Continuances,  authority  for,  may  be  asked  of 139 

Designates  first  time  and  place  of  courts-martial 81 

Duration  of  power  to  appoint  general  courts-martial 18 

Final  decision  on  availability  of  military  counsel 108 

For  courts  of  inquiry 447-449;  A.  W.  <> 7 

For  general  courts-martial,  who  may  be 14-16 ;  A.  W.  8 

For  special  courts-martial,  who. may  be 21;  A.  W.  9 

For  summary  courts-martial,  who  may  be 25  ;  A.  W.  10 

Insanity,  etc.,  of  accused  raised  at  trial,  duties 219 

Judicial  notice  of  orders  appointing  special  or  summary 

courts 289 

Limitation  on  powers  over  courts-martial 20 

May  refer  any  case  to  a  special  court-martial ;  purpose  of 

article 41a  ;  A.  W.  12 

Membership  of  general  court  should  be  an  odd  number 7 (a) 

(notel) 

Membership    of    general    court    usually    kept    near    mini- 
mum  : 7(a)  (notel) 

Power  dependent  on  command  or  duty,  not  rank 18, 19,  23 

Rank,  may  order  trial  by  juniors  to  accused  in__  12 (a)  ;  A.  W.  16 

Records  of  general  court-martial,  how  disposed  of  by 367 (a) 

Records  of  general  or  special  court  forwarded  to 366 (a) 

Records  of  special  courts-martial,  how  disposed  of  by 367  (b) 

Records,  receipt,  or  affidavit  as  to  delivery  to  accused  for- 
warded to 866  (b) 

Selection  of  best  qualified  officers  for  courts-martial.  6(c)  ;  A.  W.  4 

Use  of  term  for  "  reviewing  authority  " 369 

Variance,  directions  as  to  continuing  case  showing 158b 

Appointing  orders,  judicial  notice  of 14  (notel) 

Apprehension  of  accused  persons,   duty  of  commanding  officer 

in  aid  of  civil  authorities ;  penalty  for  refusal 424  ;  A.  W.  74 

Appropriation  of  property.     ( See  Property. ) 

Approval  of  sentence.     (See  Sentence.) 

Approving  authority  (see  also  Confirming  authority;  Reviewing 
authority). 

Power  to  confirm  sentence "378 ;  A.  W.  49 

Review  of  cases  under  A.  W.  50$,  duties  in  connection  with.     399a 

Area,  corps.     (See  Corps  area.) 

Arguments  to  court: 

By  accused,  trial  judge  advocate  and  counsel  for  accused 293 

Freedom  of  expression;  limitations 291 

Statements  of  the  accused 290-292 

Trial  judge  advocate  may  open  and  close ;  answer  by  de- 
fense       293 

Written  by  counsel  for  accused  In  absence  of  reporter ill 


INDEX.  687 

r References  are  to  paragraph*,  except  that  the  letter  "p"   indicates  pa  go, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Arizona,  fees  and  mileage  of  civilian  witnesses  in 185 

Arms : 

Casting  away,  offense  stated,  proof 425,  p.  380 ;  A.  W.  75 

Casting  away;  form  for  specification . App.  6(74) 

Army,  judicial  notice  of  organization,  circulars,  orders,  location 

of  posts,  troops,  etc 289 

Army  (tactical),  commanding  officer  may  appoint  general  court- 
martial  14 ;  A.  W.  8 

Army  areas,  commanding  officer  without  power  to  confirm  sen- 

tonces  under  A.  W.  48 378  (notel) 

Army  corps,  commanding  officer  may  appoint  general  court-mar- 
tial,  14 ;  A.  W.  8 

Army  field  clerks.     (See  Field  clerks — Army  and  Quartermaster 

Corps. ) 
Army  Nurse  Corps,  member  of : 

A.  W.  55,  56,  67,  and  75  not  applicable  to ;  A.  W.  96  proper 

for  such  offenses 406,  407,  418, 425,  p.  380 

Compensation  as  reporter  of  court-martial,  etc.,  not  allowed-  113 (f) 
Excepted  from  jurisdiction  of  special  and  summary  courts- 
martial  by  G.  O.  71,  W.  D.  1920 p.  656 

False  muster,  etc. ;  A.  W.  56  not  applicable  to 407 

Misbehavior  before  enemy ;  A.  W.  75  not  applicable  to 425 

Mutiny  or  sedition,  not  suppressing,  etc.,  under  A.  W.  96 

and  not  A.  W.  67 418  (note) 

Not  eligible  for  courts-martial 6(c) 

Not  subject  to  summary  court-martial 43 ;  A.  W.  14 

Officer  but  not  commissioned  officer;  use  of  term.  4  (note  2),  6(c) 

Power  to  quell  frays,  disorders,  etc. ;  penalty 419 ;  A.  W.  63 

Previous  conviction,  three-year  limitation  on  introduction 

of 306 

Sentences  legal  for,  enumerated 310a 

Subject  to  Articles  of  War 4 (a)  ;  A.  W.2(a) 

Unlawful  enlistment,  etc. ;  A.  W.  55  not  applicable  to 406 

Army  Regulations : 

A  source  of  military  law 2(d) 

Judicial   notice    of 289 

Military  person  presumed  to  know 282 

Army  serial  number,  identification  of  accused  by p.  605(22), 

p.  621  (note  7) 
Ai  raignment : 

Defined  ;   procedure 144 

Follows  organization  of  court 143 

Plea.    (See  Pleas.) 

Time  of,  on  additional  charges 73 


688  INDEX. 

[References  are   to  paragraphs,   except  that  the  letter  "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Arrest  (see  also  Confinement)  :  Par. 

Accused  persons  not  to  be  placed  in  ;  exceptions 46 (a)  ;  A.  W.  69 

Breach — 

Analysis  and  proof  of  offense 420 ;  A.  W.  69 

Definitions  and  principles  of  offense 420 

Forms  for  specifications App.  6(44) 

Offense  same  before  or  after  trial  or  sentence-  46 (b) ,  420 ;  A.  W.  69 
Punishment  for  officer  or  cadet,  for  others—  40,  420 ;  A.  W.  69 
Commanding   officers   only   may   place   officers   in,   except 

under  A.  W.  68 47 (a) 

Court-martial  has  no  control  over  nature  of  accused's 47 (c) 

Defense  counsel  not  subject  to,  by  court  or  president 89 

Disobedience  of  order  into ;  penalty 419 ;  A.  W.  68 

Disobedience  of  order  into;  form  for  specification App.  6(43) 

Distinguished  from  confinement 420 

Jurisdiction  of  court-martial  not  affected  by  accused  not 

being  in 46  (note) 

Limits  of ;  punishment  for  breach 46 ;  A,  W.  69 

Limits  of  restriction  upon 40 ;  A.  W.  69 

Of  deserter — 

Authority  of  citizen 59 

Authority  of  civil  officer 58 ;  A.  W.  106 

Of  officer — 

By  subordinate,  when  taking  part  in  frays,  etc 419 ;  A.  W.  68 

How  executed 48 

Only  by  commanding  officer,  except  under  A.  W.  68 47 (a) 

Procedure  where  no  charges  preferred 50 

Status  in  arrest,  applications  and  requests  in  writing 49 

Of  soldier- 
By  noncommissioned  officers,  purpose,  limitations 52 

How  effected 52 

Only  on  order  of  officer ;  exceptions 52 

Release  after  trial,  when  required 332a,  371 

Release  from,  and  restoration  to  duty ;  not  ground  for  cer- 
tain pleas 152 (c)  ;  A.  W.  70 

Status  of  officer  in 49 

Status  of  warrant  or  noncommissioned  officer  in 53 

Trial  judge  advocate  not  subject  to,  by  court  or  president 89 

Trial  judge  advocate  without  authority  to  order 47 (b) 

Who  may  order 47 

Arson : 

Burning  and  destruction  of  buildings  not  subject  of,  how 

punishable 446,  p.  465 

Burning  other  building  than   dwelling  house,   punishable 

under  A.  W.  96 443,  p.  417 

Definition  and  principles,  proof,  penalty 443,  p.  416 ;  A.  W.  93 


INDEX.  689 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Arson — Continued.  Par. 

Drunkenness  not  strictly  a  defense 285 

Forms  for  specifications App.  6  (96) 

Limitation  of  three  years 149(2) 

Articles  of  War: 

Set  out  in  full  and  indexed,  see  Appendix  1. " 

A.  W.  2,  23,  45,  effective  June  4,  1920 486 ;  App.  1 

As  source  of  military  law 2(d) 

Certain  read  to  enlisted  men 282 ;  A.  W.  110 

Effect  of  failing  to  read  prescribed  articles  to  enlisted  men 

discussed 282 

Effective,  except  three,  February  4,  1921 486 ;  App.  1 

Exact  words  followed  in  charges,  if  practicable 74 (p) 

National  Guard,  applicable  to,  upon  draft  into  service 4 (a) 

(note  d) ;  App.  2 

Offenses  against,  how  charged 74 (p) 

Persons  subject  to,  enumerated 4 ;  A.  W.  2 

Persons  subject  to  naval  jurisdiction  not  usually  subject 

to 4  (d)  (note);  A.W.2 

Rules  of  evidence  in,  as  binding 198 

Specific  article  used  where  possible,  not  general  article 74 (e) 

Substitution  of  general  or  other  specific  article  for  article 
named  in  charges ___      300 

Assault : 

(See  also  the  specific  Jcinds  of  assault  indexed  immediately 
'below.') 

Defined ;  examples 443,  p.  440 ;  A.  W.  93 

Forms  for  specifications App.  6  (108,109,138,139) 

Lesser  included  offense  in  affray 377 

Lesser  included  offense  in  assault  with  intent  to  murder, 

rape,  robbery 300,  377 

Assault  and  battery : 

Assault   included   in   battery 377 

Battery  defined;  examples 443,  p.  442 ;  446,  p.  464 

Disorderly    conduct    consisting   in   not   to    be   treated   as 

separate   offense 66 

Drunkenness  not  strictly  a  defense 285 

Felonious  assault,  a  lesser  included  offense  in  murder 377 

Lesser  included  offense  in  murder,  mayhem,  rape,  robbery —      377 

Assault  with  intent  to  commit  any  felony : 

Definitions  and  principles _ 443,  p.  439 ;  A.  W.  93 

Limitation  of  three  years 149(2) 

Assault  with  intent  to  commit  manslaughter : 

Definitions  and  principles 443,  p.  444 

Limitation  of  three  years 149(2) 


090  INDEX, 

[Deferences  arc  to   paragraphs,   except   that   the   letter   "p"   indicates 
"A.  W."  indicates  Articles  «f  War,  and  "  App."  indicate*  Appendix.] 

Assault  with  intent  to  commit  murder:  Par. 

Definitions  and  principles ;  proof 443,  p.  443 

Limitation  of  three  years 149(2) 

Minor   degrees   of   assault    included   in 377 

Assault  with  intent  to  commit  rape : 

Definitions  and  principles 443,  p.  444 

Limitation  of  three  years 149(2) 

Assault  with  intent  to  commit  sodomy: 

Definitions ;  specific  intent  required 443,  p.  445 

Limitation    of    three    years 149(2) 

Assault  with  intent  to  do  bodily  harm: 

Definitions  and  principles :  proof 443,  p.  447 

Evidence  of  similar  act,  example  when  inadmissible 206(4) 

Lesser  included  offense  in  murder,  mayhem 377 

Limitation  of  three   years 149(2) 

Assault  with  intent  to  do  bodily  harm  with  a  dangerous  weapon, 
etc.: 

Definitions  and  principles ;  proof 443,  p.  447 ;  A.  W.  93 

Limitation  of  three  years 149(2) 

Assault  with  intent  to  rob : 

Definition  ;  defense,  proof 443,  p.  445 ;  A.  W.  93 

Limitation  of   three  years 149(2) 

Assaulting  superior  officer : 

Analysis  and  proof  of  offense 415  ;  A.  W.  64 

Capital    offense    at    all    times 41 ;  A.  W.  64 

Definitions    and    principles 415 

Drunkenness   as   defense 286 

Forms  for  specifications App.  6  (31-33) 

Assaulting  warrant  or  noncommissioned  officer: 

Analysis  and  proof  of  offense 416 ;  A.  W.  65 

Definitions    and    principles 416 

Forms  for  specifications App.  6  (35,36) 

Assignment  of  pay,  court-martial  can  not  order 325 

Assistant  defense  counsel  (see  also  Defense  counsel)  : 

Appointment  for  each  general  court-martial—  31a,  107li ;  A.  W.  11 

Closed  sessions,  not  present  at;  duties  in  open  court 101 

Duties    enumerated 107i 

In  general  court-martial,  one  for  each  assistant  trial  judge 

advocate,    if   possible . 31b,  107h 

Name,  presence,  etc.,  in  record 357 (b)  (7-9, 11) 

Power  to   appoint   can  not   be   delegated 18 

Presence  or  absence  at  opening  and  after  recess,  in  record 84, 

357(b)(37,38) 

Relation  to  individual  counsel 108, 109 ;  A.  W.  17 

Review  proceedings,  presence  at 352 


INDEX.  691 

[References  are   to   paragraphs,   except   that   the   letter  "  p "   indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Ap[>eiidix.] 

Assistant  defense  counsel — Continued.  Par. 

Usually  present  but  .may  be  excused  by  court;  noted  in 

record 107i 

When  included  under  term  "Defense  counsel  " lOTi 

Where  seated   in   court 83 

Assistant  staff  judge  advocate  (see  also  Staff  judge  advocate)  : 

Report  or  review  of  records 379 

Assistant  trial  judge  advocate  (see  also  Trial  judge  advocate)  : 

Appointment ;   duties 30, 106, 107 ;  A.  W.  11, 116 

Authentication    of    general    court-martial    records,    when 

by 354,  357 (b)   (54)  ;  A.  W.  33 

Closed  sessions,  not  present  at ;  effect  if  present 101 

Name,  presence,  etc.,  in  record 357 (b)  (7-9) 

Oath  administered  to  trial  judge  advocate  as  witness 134 (b) 

Oath  for  administrative  purposes  administered  by 138 (b)  ; 

A.  W.  1U 

Power  to  appoint  can  not  be  delegated 18 

Presence    or    absence    at    opening    and    after    recess,    in 

record 84,357(b)  (37,  38) 

Revision  proceedings,  presence  at 352 

Subscribing     each     day's     proceedings,     when     shown     in 

record ._  357(b)  (53) 

Taking  of  oath  noted  in  record 357 (b)  (17) 

Trial  of  less  important  cases 107 

Usually  present  but  may  be  excused  by  court;  noted  in 

record 107 

When  included  under  term  trial  judge  advocate 107 

Where  seated  in  court 83 

Assisting  desertion : 

Analysis  and  proof  of  offense 410;  A.  W.  59 

Capital  offense  in  time  of  war,  any  other  punishment  in 

peace 61;  A.  W- 59 

Definitions  and  principles 410 

Forms  for  specifications App.  6(24) 

Attachment  of  witness : 

As  process  to  obtain  attendance;  power,  procedure,  discre- 
tion in  exercise 159, 168 ;  A.  W.  22 

Form  for  warrant App.  20 

Papers  to  be  used  in  making  return,  enumerated 168 (a— f) 

Procedure  on  habeas  corpus  out  of  Federal  court —  169 (a),  479; 

App.  22 

Procedure  on  habeas  corpus  out  of  State  court 3 69 (b), 478 (a)  ; 

App.  22 
Trial  judge  advocate's  duties,  how  executed _  168, 169 


692  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "p"  indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Attempt : 

(See  also  the  specific  offense  attempted.)  rar. 

A  lesser  included  offense  of  offense  alleged 300,  377 (note) 

Conviction,  when  properly  under  general  article 300 (note  2) 

Defined 417 

Attorney  and  client  (see  also  Privileged  communications)  : 

Communications  are  privileged;   client   only  may  waive; 

third  parties  may  testify 227 

Auditor  for  the  War  Department : 

Receives  report  on  disposal  of  deceased  person's  effects 482 ; 

A.  W.  112 
Authentication : 

Court  of  inquiry  records,  by  whom 473 

Documentary    evidence;    fundamental    requirement,    pro- 
cedure     236a 

Documentary  evidence;  method;  letters,  telegrams,  official 

documents 239 

Forms  for,  in  absence  of  president  or  trial  judge  advo- 
cate  357 (b)  (54) 

General  court-martial  records,  by  whom 354, 

357(b)   (54)  ;  A.W.33 

Previous  convictions ;  how  made  for  use  at  trial 306 

Autrefois  acquit,  evidence  to  support  plea  of 274 

(See  also  Former  jeopardy.) 
Bad  character.     (See  Character  evidence.) 
Band    leader,    power    to    quell    frays,    disorders,    etc.;    pen- 
alty  419;  A.  W.  68 

Battalion : 

Assignment  to  disciplinary,  legal  sentence  for  soldier 311 

Detached;  commanding  officer  may  appoint  special  courts- 
martial  21 ;  A.  W.  9 

Detached ;  commanding  officer  may  appoint  summary  courts- 
martial  25 ;  A.  W.  10 

Detached;  defined  and  discussed 28 

Word  includes  squadron 4(note  1)  ;  A.  W.  l(d) 

Battery : 

Assault  and.     (See  Assault  and  battery.) 

Included  under  word  "company" 4(notel)  ;  A.W.  l(c) 

Beginning  mutiny  or  sedition,  defined 417 

Behaving  in  insubordinate  or  disrespectful  manner  to  warrant 
or  noncommissioned  officer : 

Analysis  and  proof  of  offense 416;  A.  W.  65 

Definitions  and  principles 416 

Form  for  specification App.  6(38) 


INDEX.  693 

[References  are   to   paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  " App."  indicates  Appendix.] 

Best  evidence :  Par 

General  rule  as  to  writings 236a(l),237 

Of  former  trial  by  court-martial  or  civil  court 274 

Of  pardon 273 

Bias,  hostility,  etc.: 

Challenge,  ground  of 121 

Defense  counsel  may  be  excused  from  duty 107f 

Of  witness  does  not  disqualify  but  affects  weight  of  testi- 
mony    213 

Trial  judge  advocate  may  be  excused  from  duty 102 

Bigamy,  wife  may  testify  against  husband  accused  of 228 

Binding : 

Records  of  general  courts-martial;  documents  and  papers, 

App.  10,  p.  627 

Records  of  special  courts-martial 362 

Board  of  review: 

Action  on  death,  unsuspended  dismissal  or  dishonorable 
discharge,  penitentiary  cases  and  cases  requiring  Presi- 
dent's approval  or  confirmation 371 ;  A.  W.  50$ 

Duties  under  A.  W.  50*  described  in  detail 399a 

Nonconcurrence  of  Judge  Advocate  General  with ;  procedure 

399a(c),399(note2) 

Board,  refusal  to  appear  before  a 170 ;  A.  W.  23 

Board  to  investigate  injuries  to  property.     (See  Injury  to  prop- 
erty, redress  of.) 
Bodily  harm: 

Assault.     (See  Assault  with  intent  to  commit  bodily  harm.) 

Wife  may  testify  against  husband  accused  of  inflicting 228 

Books.     (See  Documentary  evidence.) 

Books  of  civilian  witness;  obtained  by  subpoena  duces  tecum, 

form 166  ;  App.  19,  p.  651 

Books  of  account,  use;  conditions,  refreshing  recollection,  au- 
thentication,  originals 244 

Branding   prohibited 344 ;  A.  W.  41 

Breach  of  arrest.     (See  Arrest.) 

Breach  of  peace,  lesser  included  offense  in  affray 377 

Breaking  defined 443,  p.  418 

Bribe : 

Laying  duty  or  imposition  upon  bringing  in  of  victuals,  etc.     437 ; 

A.  W.  87 

Wrongful  taking  of  money,  etc.,  on  muster 407 ;  A.  W.  56 

Brief : 

Records  of  general  and  special  courts-martial 357 (b)  (1),  361 

To  be  filed  with  return  to  State  court  on  habeas  cor- 
pus   App.  22,  p.  661 


694  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  *'p"   indicates  page. 
"  A.  W."  indicates  Articles  of  War,  and  "  Appt"  indicates  Appendix.] 

Brigade :  Par. 

Commander  may  appoint  special  courts-martial 21;  A.  W.  9 

Commander's  duties  where  officer  arrested  without  charges 

preferred 50 

Detached ;  defined  and  discussed 28 

Powers  of  commander  respecting  summary  courts-martial 29 

Separate;    commander    may    appoint   general    courts-mar- 
tial  14  A.  W.  8 

Bulky  reports  not  appended  to  record pp.  564 (9), 650 (5) 

Burden  of  proof : 

Finding  of  not  guilty  at  close  of  prosecution's  case lf>8c 

In  collateral  issues 288 

Mental  condition  of  accused,  on  prosecution 219 (b) 

On  prosecution  ;  reasonable  doubt  defined 288 

On  special  plea,  rests  with  accused 153 (a) 

Bureaus  of  War  Department,  copies  of  records  as  evidence 238 

Burglary : 

Definition  and  principles,  proof,  penalty.  443,  pp.  413,  418  ;  A.  W.  93 
Distinct  and  specific  intent,  independent  of  act,  essential—      280 

Drunkenness  as  defense 285 

Form  for  specifications App.  6(97) 

Housebreaking   distinguished 443,  p.  420 

Limitation  of  three  years 149(2) 

Specifications  should  set  out  facts  as  to  any  accompanying 
larceny 443,  p.  420 

Burning  buildings,  vessels,  stores,  etc.  (see  also  Arson)  : 

Arson  distinguished  from  offense  of 446,  p.  4G6 

Offense  defined 446,  p.  466 

Cadet : 

Conduct   unbecoming   officer   and   gentleman;    offense   de- 
fined, proof 445 ;  A.  W.  95 

Confirmation  by  President  of  sentence  of  suspension  or  dis- 
missal  378(c)  ;  A.  W.  48 

Excepted  from  jurisdiction  of  special  and  summary  court- 
martial  by  G.  O.  71,  W.  D.,  1920 p.  656 

Subject  to  Articles  of  War 4(b)  ;  A.  W.  2(b) 

Summary  courts-martial,  not  triable  by 43 ;  A.  W.  14 

What  article  to  be  used  in  charging  offenses 74 (e)  (note) 

When  military  jurisdiction  over  ceases 38 

California,  fees  and  mileage  of  civilian  witnesses  in 185 

Call: 

As  subjecting  person  called  to  Articles  of  War__  4(a)  ;  A.  W.  2 (a.) 

National  Guard;  laws  and  regulations  applicable  upon 4 (a) 

(noted) 


INDEX.  G95 

I  References  are  to  paragraphs,   except  that   the   letter   "p"   indicates   page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 


As  place  of  confinement  of  general  prisoner  _______________      398 

Camp  followers  subject  to  military  law  __________  4(e)  ;  A.  W.  2 

Commanding  officr  may  appoint  special  courts-martial  _____      21  ; 

A.  W.  9 

Commanding  officer  may  appoint  summary  courts-martial  __      25  ; 

A.  W.  10 
Canal   Zone: 

Double  jeopardy  rule  in  ____________________________  149(3)  (d) 

Trial  in  either  civil  or  military  court  in,  bar  to  trial  in  other 
for  same  offense  _________________________________  149(3)  (d) 

Capital  offenses  (see  also  Death  sentence)  : 

Accused  must  be  confronted  with  witnesses  against  him__    165; 

A.  W.  25 

Case  referred  to  special  court-martial  under  A.  W.  25  not 
capital  _____  _:  _________________________________________       263 

Cross-examination  permitted  of  witness  deposing  for  de- 
fense in  ______________________________________________      264 

Court  of  inquiry  records  admissible  for  defense  only.  272  ;  A.  W.  27 
Depositions  may  be  introduced  by  defense  only_  263,  264  ;  A.  W.  25 
Enumerated  ____________________________________________        41 

Former  testimony,  when  admissible  in  __________________    377a 

Captured  public  property.     (See  Property.) 

Carnal  knowledge  of  female  under  16  (see  also  Rape)  : 

Definition;      distinguished     from     rape;     essential     ele- 

ments ________________________________________  446,  p.  465 

Form  for  specification  _____________________________  App.  6(179) 

Casting  away  arms  or  ammunition: 

Analysis  and  proof  of  offense  ______________  425,  p.  380  ;  A.  W.  75 

Definitions  and  principles  ______________________________      425 

Form  for  specifications  _____________________________  App.  6  (57) 

Certificate,  use  of  typewriter  in  recording  findings  and  sen- 
tence _______________________________________________  357  (  b  )  (  55  ) 

Certificate  of  discharge,  use  as  proof  of  good  character  before  or 

after  findings  _________________________________________      270 

Certificate  of  eligibility  to  promotion: 

Deprivation  of  rights  and  privileges  under,  legal  sentence  by 
general  court-martial  for  enlisted  men  __________________      311 

Soldier  holding  not  subject  to  summary  court-martial.  43  ;  A.  W.  14 
Challenge  : 

Classes,  practically  two;  principal  and  for  favor  _____  120  (  note  1) 

Court  of  inquiry  ;  for  cause  only  ________________  464  ;  A.  W.  99 

Defense  counsel  not  challengeable  ____________________         107f 

Defined;  proof,  penalty  _________________________  441  ;  A,  W.  ft 

Failure  to  report  knowledge  of  _________________  441  ;  A.  W.  91 


696  INDEX. 

[References  are   to   paragraphs,   except  that  the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Challenge — Continued:  Par. 

For  favor;  enumerated,  proof 121  (b) 

Grounds  enumerated 121 

Joint  offenses;  each  accused  has  one  peremptory 69 

Joint  offenses;  each  accused  may  challenge 69 

Law  member  challengeable  only  for  cause 120 ;  A.  W.  18 

Liberality  in  passing  on 128 

Medical  board  member 126(note2) 

Member  as  accuser  or  witness  for  prosecution 129 ;  A.  W.  8,  9 

Member  as  witness  for  either  side,  discussed 131 

Member  becoming  witness;  procedure 126 (b) 

Member  disqualified  but  not  challenged;  procedure 126 (a) 

Member  not  to  challenge  another  member ;  procedure 124 

Member  signing  charges 130 

New  member 122 

Oath  to  test  competency ;  form 137 

Opportunity  to  challenge  noted  in  record 357 (b)  (16) 

Peremptory,  each  accused  has  one,  in  joint  trials 120a ;  A.  W.  18 

Peremptory ;  may  be  used  against  new  member 122 

Peremptory,  no  reason  need  be  stated 120a 

Power  of  four  members  of  general  court-martial  to  pass  on_    7 (a) 

Principal  challenges  enumerated,  proof 121  (a) 

Procedure  in  making  described 120 ;  A.  W.  18 

Procedure  upon,  detailed 125 

Record  to  show  who  challenged  and  action  thereon 357b(12) 

Summary  court  officer  not  subject  to 120 ;  A.  W.  18 

Trial  judge  advocate  not  challengeable 120 

Voting  on ;  method,  secret  written  ballot 90a ;  A.  W.  31 

Waiver  of  right,  what  action  deemed 127 

Chaplain,  not  usually  detailed  as  member  of  court-martial 6(b) 

Character  evidence: 

Accused  as  witness,  character  for  credibility 206 

Bad  character  of  accused  may  not  be  shown ;  exceptions-  205,  206 

Certificate  of  discharge  as  proof  of  good  character 270 

How  affected  by  rule  as  to  motive 206 

Service  record  of  accused  introduced  after  conviction 206 

Statement  of  service  as  proof  of  good  character 271 

Charge  sheet,  form  of App.  5 

Charges : 

(Of  a  particular  offense,  see  the  specific  title.) 

Accumulation  usually  improper;  exception . 6c 

Accused  demanding  trial  in  disciplinary  punishment  case 336of 

Additional ;  defined  and  discussed 73 

Alias  should  be  used  in  preparing 74 (i) 

Charge  sheet ;  form,  preparation,  contents App.  5 

Christian  name  should  be  used  in  preparing 74 (h) 


INDEX.  697 

[References  are  to   paragraphs,   except   that   the  letter   "  p "   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Charges — Continued.  Pa^ 

Consolidated  distinguished  from  r  dditional  charges 73 

Consolidation ;  serious  and  minor  offenses  not  to  be  joined-        67 

Copies,  disposition  of 79 ;  A.  W.  70 

Correction  of  defective,  may  be  permitted  by  commanding 

officer 76 

Corrections  and  amendments  of,  by  trial  judge  advocate 97 

Definitions;  charge  and  specification;  requisites 61 

Dismissal,  after  receipt,  by  commanding  officer 76a(  1,11,12) 

Disposed  of  by  reference  to  special  court  in  commanding 

officer's   discretion 76a(ll,  12) 

Disposed  of  by  reference  to  summary  court  in  commanding 

officer's   discretion 76a(5,ll,  12) 

Disposed  of  under  A.  W.  104  in  commanding  officer's  discre- 
tion   76a  (2,  4,  7, 11, 12) 

Disposition  of,  with  accompanying  papers,  by  trial  judge 

advocate 79  (b) 

Duplication  for  same  act  usually  improper ;  when  permitted-        66 

Examination  on  receipt  by  trial  judge  advocate  for  errors 97 

Finding  of  guilty  on  other  charges  than  named 298, 300 

Findings  on,  must  be  consistent  with  and  supported  by  find- 
ings on  specifications 297 

Formal,  not  required  for  disciplinary  punishment 336c 

Forms  in  Manual  cover  most  offenses,  but  not  mandatory.-  74 (f) 

App.  6,  p.  565 

Forwarded  in  form  of  indorsement  on  letter  of  investigat- 
ing officer 76a(ll) 

Forwarded    to    commanding    officer    exercising    summary- 
court  jurisdiction 75 

Guilty  of  but  one  specification  supports  like  finding  upon 297 

Initiation  of,  by  civilians ;  affidavits  or  other  evidence 62 

Investigation : 

By  staff  judge  advocate ;  procedure  in  detail  thereon —      76b 

Form;  number  of  copies 76a(10 — notes 2, 11) 

Further,  by  return  for  that  purpose 76b 

Further,  by  staff  judge  advocate 76b 

Informal,  by  commanding  officer  personally 76a(3-7) 

Procedure  in  detail  described 76a 

Report  of  investigating  officer;  form,  inclosure 76a(10) 

Time  limit  after  receipt 76a(3, 10) 

Joint ;  when  may  be  preferred,  form,  challenges 69 

List  of  witnesses  for  both  sides  forwarded  with 75 

Medical   board,   appointment   in   connection  with;   duties, 

report,  action  thereon 76c 

Memorandum  of  documentary  evidence  forwarded  with 75 

Method  of  voting  on 294 


698  INDEX. 

[References  are   to   paragraphs,    except   that   the   letter   "p"    indicates 
"A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Charges — Continued.  Par. 

Numbering 72 

Oath  to  ;  knowledge  or  investigation  clearly  set  forth 75, 

75 (note)  ;  A.  W.  70 

Offenders  against  laws  of  community  ;  procedure 35 

Original    counterpart    appended    to    general    court-martial 

record 357 (b)  (56) 

Originals,  with  accompanying  papers,  disposition  of 79 

Pleading  to,  in  what  order 144 

Preferred  by  any  person  subject  to  military  law 63,  75 ;  A.  W.  70 

Preference ;  knowledge  or  investigation  required 75,  A.  W.  70 

Prepared  in  triplicate  on  prescribed  form 75 ;  App.  5 

Private  indebtedness ;  when  nonpayment  an  offense 71 

Prompt  action  on;  period;  penalty  for  delay 77a;  A.  W.  70 

Receipt  by  commanding  officer,  action  upon  described 76,  76a 

Record  of  general  court-martial  to  contain 357 (b)  (18) 

Record  of  general  court-martial  to  contain  name  of  person 

subscribing  and  swearing  to 367 (b)  (19) 

Return  for  correction  or  reconsideration 76 

Return  for  reconsideration,  when  prohibited 352 ;  A.  W.  40 

Service  on  accused — 

Failure  to  serve  as  ground  for  continuance 77b ;  A.  W.  70 

Five  days  before  trial,  in  peace  time 77b,  80 ;  A.  W.  70 

Of  charges  and  other  papers 77b  ;  A.  W.  70 

Signature    and    affidavit    by    person    subject    to    military 

law;  forms 62;  A.  W.  70;  App.  4 

Signature  and  affidavit ;  contents ;  form  of  oath 75 ; 

A.  W.  70 ;  App.  5,  p.  561 
Signature  and  affidavit;  name,  rank,  organization,  or  rank 

or  status  of  person  preferring 64 

Signature  and  affidavit  no  part  of 64 

Signature  "  by  order  of  "  forbidden 64 

Statement  of  article  violated 74 (a) 

Summary  court;  given  serial  number 351  (b) 

Transfer  to  proper  commanding  officer 76 

Triplicate;  additional  sheets;  form 75 

Uncorroborated  confession  not  sufficient  basis  for 70 

Witnesses,  list  of,  forwarded  with 75 

Check-list,  on  record  of  trial 357 

Child  as  witness: 

Common-law  rule  abolished  in  courts-martial 210(a)  (note) 

Competency  not  regulated  by  age  but  by  sense  and  under- 
standing   210 (a) 

Circumstantial  evidence  (see  also  Evidence)  : 

Defined  and  explained 202 (3),  203 

Examples  of  admissible  and  inadmissible 204 


INDEX.  699 

[References  are   to  paragraphs,   except   tbat   the  letter  "p"   indicates   page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Citizen,  right  to  arrest  deserter ;  reward 58,  59  ;  A.  W.  10G 

Civil  authorities : 

Absence  without  leave  as  affected  by  detention  by 412 

Civil  courts  (see  Civil  courts). 

Delivery  of  person  found  responsible  on  inquest  for  death 

on  post,  etc.,  to 483;  A.  W.  113 

Delivery  to,  as  interrupting  execution  of  sentence—  401 ;  A.  W.  74 

Depositions,  when  may  be  taken  before 175 ;  A.  W.  26 

Deserters,  power  to  arrest  and  deliver  to  military  authori- 
ties  58 ;  A.  VV.  106 

Refusal  to  deliver  offender  to,  in  peace  time,  offense  ana- 
lyzed, penalty 35,  424  ;  A.  W.  74 

Refusal  to  deliver  offender  to,  specific  intent  required 281 

State  courts.     (See  State  courts.) 

Witnesses  in,  confinement,  attendance  at  court-martial 167 

Civil  courts : 

Concurrent    jurisdiction    with    military    courts    of    certain 

offenses 35 

Federal ;   habeas   corpus   in   attachment   proceedings,    pro- 
cedure   169 ( a ) 

Federal ;  power  to  inquire  into  legality  of  detention  of  per- 
son in  military  control 33 

Federal;  punishment  of  recalcitrant  witness  before  court- 
martial  by 170 

Federal;  removal  to,  of  suit  against  member  of  military 

service 484 ;  A.  W.  117 

Former  testimony  in,  when  admissible  in  courts-martial 275 

Former  trial  in,  when  bar  to  second  trial 149(3),  274;  A.  W.  40 

Powers  of,  over  judgments  of  courts-martial 33 

State  courts.     (See  State  courts.) 

When  accorded  priority  of  jurisdiction 35 

Civil  offenses.     (See  Civil  authorities;  Civil  courts.) 
Civil  officers  (see  also  Civil  authorities)  : 

Certain  officers  serving  with  Army  abroad  have  powers  of 

notary  public  or  consul 138 (b)  ;  A.  W.  114 

Fees  for  taking  depositions 181 

Civil  suits,  removal  to  Federal  court  of  civil  or  criminal  suit 

against  member  of  military  service 484 ;  A.  W.  117 

Civilian  witnesses.  (See  Witnesses.) 
Civilians : 

May  initiate  court-martial  charges 62 

Warning  by  arresting  civilian  as  to  incrimi nation  not  nec- 
essary   225 (b) 

Claims,     (See  False  claims  against  United  States.) 


700  INDEX. 

[References  are   to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Class  A  allotment  not  subject  to  detention  or  forfeiture 311 

Class  B  allotment  not  subject  to  detention  or  forfeiture 311 

Class  B,  officer  placed  in : 

Court  of  inquiry  may  be  ordered  to  inquire  into  correct- 
ness  3(d)  (note),  447a,  452 

Discharged    officer    lias    no    right    to    trial   under   R.    S. 

1230 38 (b)  (note) 

Clemency : 

Applications  for,  who  may  pass  on ;  excepted  places 402 

Applications  limited  to  one  in  six  months 404 

Recommendation  by  court-martial;  contents,  form,  specific 

character 332 

Recommendation  in  special  court  trial,  appended  to  record-  358 (c) 
Recommendation  not  embodied  in  but  bound  into  record 

of  general  court-martial 357(b)   (57) 

Remission  of  suspended  sentence  of  dishonorable  discharge, 

a  matter  of 403 

Clerk : 

Extra  compensation  forbidden  except  to  reporters 118 

Finding  or  sentence  not  communicated  to;  legality  unaf- 
fected if  done 305 

For  defense  counsel 107g 

For  trial  judge  advocate 105 

Record-  may  be  prepared  by 355 

Closed  sessions: 

Effect  of  presence  of  trial  judge  advocate   during 101 

Sitting  with  closed  doors,  practice  and  propriety  of 92 

Trial  judge  advocate,  defense  counsel,  etc.,  not  present  at 101 

When    voting    on    challenge,    findings    or    sentence;    pro- 
cedure   91 ;  A.  W.  31 

Clothing  defined 434 

Coast  Artillery  district  commander: 

Duties  where  officer  arrested  without  charges  preferred 50 

Code  of  District  of  Columbia : 

As    guide    for    penitentiary    sentence    and    duration    of 

same    40, 338 ;  A.  W.  42, 45 

As  source  of  definitions  for  offenses  under  A.  W.  92  and 

93,  after  Penal  Code 442,  p.  408 

Collateral  issues: 

Burden   of  proof  in 288 

Limitations  on  contradiction  or  impeachment  of  witnesses 

as   to 259 

Prejudice,  bias,  relationship,  etc.,  never  regarded  as 260 

Colorado,  fees  and  mileage  of  civilian  witnesses  in 185 


INDEX.  701 

[References  are   to   paragraphs,   except   that   the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Command :  Par 

Assignment  of,  among  regulars,  militia,  and  volunteers 12; 

A.  W.  119 

Authority  to  exercise  in  absence,  etc.,  of  area  or  depart- 
ment  commander 19 

Compelling    surrender;    analysis,    proof,    penalty__  426;  A.  W.  76 
Detached;  commanding  officer  may  appoint  special  courts- 
martial 21 ;  A.  W.  9 

Detached;     commanding    officer    may    appoint    summary 

courts-martial 25 ;  A.  W.  10 

Endangering  safety  of ;  analysis,  proof,  penalty 425,  p.  379 ; 

A.  W.  75 

Officer  in  arrest  may  not  exercise 49 

Power  to  appoint  general  court-martial  a  personal  attribute 

of 18 

President  of  court-martial  does  not  exercise 89 

Shamefully  abandoning  or  delivering  up;  analysis,  proof, 

penalty 425,  p.  378 ;  A.  W,  75 

Suspension  from.     (See  Suspension  from  command.) 

When   different  corps  or  commands  join 10, 11 ;  A.  W.  120 

Commander  of  a  guard : 

May  receive  prisoner  without  account  of  charge,  etc 421 

Refusal  to  receive  or  keep  prisoner,  accompanied  by  written 

account   of   offense ;    penalty 55, 421 ;  A.  W.  71 

Report  on  confinement  of  prisoners  within  24  hours 55 (note)  ; 

A.  W.  72 

Term   includes   noncommissioned   officer   or   private 421,422 

Commanding  general  of  Army  in  field: 

Confirmation  of  sentences    by,  when  sufficient 378(b)  (d)  ; 

A.W.48 

Mitigation  or  remission  of  sentences,  when  empowered 381; 

A.  W.  50 

Commanding  officer  (see  also  Appointing  authority;  Confirming 
authority;  Reviewing  authority): 

Arrest  of  officer  only  ordered  by;  exceptions 47 (a) 

Arrest  of  officer  without  preferring  charges,  duties  on 50 

As  "accuser"  or  "prosecutor,"  discussed,  as  defense,  pro- 
cedure  17, 22 

Being  interested  in  sale  of  victuals,  etc. ;  offense  described, 

penalty    437 ;  A.  W.  87 

Charges,   action   upon   receipt   of,   described 76, 76a 

Compelling  surrender  by,  analysis,  proof,  penalty —  426 ;  A.  W.  76 
Complaints  of  wrongs  alleged  to  have  been  done  by;  pro- 
cedure  485 ;  A.  W.  121 

Courts  of  inquiry,  discretion  as  to  publication  of  proceed- 
ings  of   472 

21358"— 20 45 


702  INDEX. 

[References  are   to  paragraphs,   except  that  the  letter  "p**   indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "App,"  indicates  Appendix.] 

Commanding  officer — Continued.  Par. 

Courts  of  inquiry,  limitation  upon  power  to  appoint 447, 

448 ;  A.  W.  97 

Courts  of  Inquiry ;  power  to  order,  discretion 447,  449 ;  A.  W.  97 

Deceased  persons'  effects,  duties  respecting 482 ;  A.  W.  112 

Definition  under  A.  W.  74  relating  to  delivery  of  accused      424 

Definition  under  A.  W.  67  relating  to  mutiny 418 

Definition  under  A.  W.  72  relating  to  report  of  prisoners..      422 
Delegation  of  appointing  powers  respecting  courts-martial, 

forbidden    18 

Disciplinary  powers  defined   and  discussed 333 ;  A.  W.  104 

Disciplinary  punishment,  responsibilities  affecting 336a 

Disrespect  toward ;   analysis  and  proof,  penalty.-  414 ;  A.  W.  G3 

Duration  of  power  to  appoint  general  court-martial 18 

Duties   where   general   or  special   court-martial   likely   to 

be  reduced  below  quorum 7 (a)  (b) 

Eligibility  for  appointment  as  summary  court-martial 26,  27 ; 

A.  W.  10 

Eligibility  for  membership  in  special  court-martial 24 

Exercises  military  jurisdiction  under  A.  W.  104 3 (c) 

General  court-martial,  duration  of  power  to  appoint 18 

General  court-martial ;  duties  respecting  quorum,  new  mem- 
bers, officers  thereof,  etc 7 (a) 

Injuries  to  property;  duties  under  A.  W.  105 481 

Inquests,  duties  respecting  holding  of 483 ;  A.  W.  113 

Interest  in  sale  of  victuals,  etc.,  forbidden ;  penalty-  437 ;  A.  W.  87 

Interrogatories,  duties  as  to  securing 177 

Laying  a  duty  or  imposition  upon  bringing  in  victuals,  etc. ; 

offense  described,  penalty 437 ;  A.  W.  87 

Prompt  action  on  charges ;  duties,  penalty 77a ;  A.  W.  70 

Refusal  to  deliver  offenders  to  civil  authorities ;  penalty.—      35 ; 

A.  W.  74 

Release  of  accused  after  trial,  when  required  by ; 332a 

Reparation  for  damage,  duty  to  provide  for;  penalty  for 

failure 89,  439 ;  A.  W.  105 

Report  of,  upon  arrest  of  officer  without  preferring  charges.        50 

Senior  officer  on  duty  at  recruiting  sentence  as 26 

Special  court-martial ;  duties  respecting  quorum,  new  mem- 
bers, officers  thereof,  etc 7(b) 

Special  court-martial,  higher  authority  may  appoint  on 24 

Special  court-martial,  not  to  appoint  self  on 24 

Summary  court-martial,  defined  with  reference  to  appoint- 
ing         26 

Summary  court-martial,  when  not  to  designate  self  as 26 

Who  may  appoint  general  courts-martial 14 ;  A.  W.  8 

Who  may  appoint  special  courts-martial 21 ;  A.  W.  9 

Who  may  appoint  summary  courts-martial 25 ;  A.  W.  10 


INDEX.  703 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Comment  by  prosecution:  Par. 

Accused  as  witness  silent  on  certain  facts,  permitted 214 (c) 

Accused  failing  to  take  stand,  no  comment  permitted 214 (c) 

Commercial   lists,    registers,   etc.,    admission    as   exception    to 
hearsay  rule 221a(7) 

Commission,  military.     (See  Military  commission.) 

Committing  any  waste  or  spoil : 

Analysis  and  proof  of  offense 439 ;  A.  W.  89 

Definitions  and  principles 439 

Forms  for  specifications App.  6  (82-84) 

Committing  depredation  or  riot : 

Analysis  and  proof  of  offense 439 ;  A.  W.  89 

Definitions  and  principles 439 

Forms  for  specifications App.  6(82-85) 

Common  law : 

Accomplices  not  disqualified  as  at 217  (note  1) 

As  applicable  to  the  rules  of  evidence  in  courts-martial—  198, 199 
Competency  of  children  in  courts-martial  not  governed  by_  210 (a) 

(note) 

Judicial  notice 289 

Of  District  of  Columbia 338 (c) 

Commutation  of  sentences,  President  alone  may  exercise  power 
of,  unless  delegated  under  A.  W.  50 384 

Commuted  death  sentence  may  be  executed  in  penitentiary 338 ; 

A.  W.  42 

Company : 

Company  commander  initials  charge  sheet  of  summary  court 

as  to  entries  on  service  record App.  5(6) 

Company  commander's  duties  respecting  record  of  summary 

court  conviction 79 (a) 

Detached ;  commanding  officer  may  appoint  summary  courts- 
martial  25 ;  A.  W.  10 

Detached;  defined  and  discussed 28 

Disciplinary  punishments  entered  in  punishment  book 334 

Embezzlement  by  former  officer  of  funds  of,  how  punish- 
able  444,  p.  457  ;  A.  W.  94 

Word  includes  troop  or  battery 4(notel)  ;  A.  W.  l(c) 

Compelling  commander  to  surrender: 

Analysis  and  proof  of  offense 426 ;  A.  W.  76 

Attempt  a  like  offense ;  analysis,  proof,  penalty 426 ;  A.  W.  76 

Definitions  and  principles 426 ;  A.  W.  76 

Form  for  specification App.  6(60) 

Compensation : 

Extra,  for  clerical  duties ;  when  forbidden 118 

Of  reporter,     (See  Reporter.) 


704  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Competency  of  witnesses.     (See  Witnesses.)  Par. 
Complaint  of  wrongs,  to  general  commanding  in  locality;  pro- 
cedure  485;  A.  W.  121 

Concealment : 

Defined,  as  to  fraudulent  enlistment 405 

Presumption  of  fact  arising  from 278 

Concurrent  jurisdiction : 

Of  civil  and  military  courts 35 

Of  other  military  tribunals  with  courts-martial 45 ;  A.  W.  15 

Condonation,  constructive,  by  restoration  of  deserter  to  duty 

without  trial ;  as  plea  in  bar 151 

Conduct,   insubordinate,   toward   warrant   or   noncommissioned 

officer,  definition  and  proof 416 ;  A.  W.  65 

Conduct  of  a  nature  to  bring  discredit  upon  the  military  service : 

Definitions  and  principles,  instances,  proof 446,  p.  462 ;  A.  W.  96 

Forms  for  specifications App.  6 

Conduct  prejudicial  to  good  order,  etc.,  offenses  where  drunken- 
ness shows  lack  of  intent 286 

Conduct  unbecoming  an  officer  and  gentleman : 

Analysis  and  proof,  instances 445 ;  A.  W.  95 

Cadet  may  be  guilty  of 445 ;  A.  W.  95 

Definitions  and  principles 445 

Forms  for  specifications App.  6(123-130) 

Lesser  included  offenses  thereunder  enumerated 377 

Confession  (see  also  Admission  against  interest)  : 

Accused  can  not  be  required  to  admit  his  statement 225 (note  1 ) 

Admissions  against  interest  distinguished 226 

Affirmative  showing  that  voluntary 225 (b) 

Facts  discovered  from,  admissible  in  evidence 225 (e) 

Of  accomplice  as  ground  for  milder  punishment 216 

Rules  for  admission  of 225 

Silence  is  not  a  confession 225 (d) 

Uncorroborated,  caution  in  receiving 225 (d) 

Uncorroborated,  not  sufficient  basis  for  charges 70 

Confidential  relations.     (See  Privileged  communications.) 
Confinement  (see  also  Arrest)  : 

Accused  persons  not  to  be  placed  in ;  exceptions 40 ;  A.  W.  69 

At  hard  labor — 

Executive  order  limiting  duration p.  283 

For  officers  only  to  accompany  sentence  of  dismissal 322 

Legal  sentence  for  officer 310 

Legal  sentence  for  soldier 311 

May  be  mitigated ;  how 382 

Only  proper  sentence  for  general  prisoners 330 

Relative  severity  to  other  sentences 343 

Statement  in  sentence,  effect  of  omission 322 


INDEX.  705 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Confinement — Continued.  Tar. 

Change  of  place  of 389 

Commanding  officer's  disciplinary  power  does  not  extend  to_     333 ; 

A.  W.  104 

Consideration  of  past,  in  determining  sentence  proper 401 

Court-martial  without  authority  to  order  but  may  make 

recommendations 47  (c) 

Date  of  beginning  sentence  of 401 

Designation  of  place  of,  by  whom 394 

Disobedience  of  orders  ordering  into ;  penalty 419 ;  A.  W.  68 

Distinguished  from  arrest 420 

Escape — 

Analysis  and  proof  of  offense 420 ;  A.  W.  69 

Definitions  and  principles  of  offense 420 

Forms  for  specifications App.  6(43) 

Offense  same  before  or  after  trial  or  sentence 46 (b), 420; 

A.  W.  69 

Punishment  for  officer  or  cadet,  for  others.  40,  420  ;  A.  W.  69 
Exceeding  six  months,  special  court-martial  can  not  ad- 
judge  42  ;  A.  W.  13 

Forfeiture  of  pay  and  allowances  not  implied  from 324 

Hard  labor  without,  use  of  punishment  encouraged 323 

Imports  some  physical  restraint 420 

In  post,  when  proper 398 

In  penitentiary,  when  proper 40,  337-339,  396 ;  A.  W.  42,  45 

In  disciplinary  barracks,  when  proper 397 

Jurisdiction  of  court  unaffected  by  failure  to  place  accused 

in 46  (note) 

Mitigation  of  sentence  of 382 

Of  accused  awaiting  investigation  or  trial,  no  unnecessary 

delay  ;  penalty 420*  ;  A.  W.  70 

Of  soldier  only  on  order  of  officer ;  exceptions 52 

Officer,  sentence  affecting,  reported  to  The  Adjutant  Gen- 
eral  310  (note) 

Place : 

Authority  to  change 389 

Designated  by  reviewing  authority 394 

Disciplinary  barracks  as 397 

Military  post,  station  or  camp  as 398 

Penitentiary  as 396 ;  A.  W.  42 

Release  after  trial,  when  required 332a,  371 

Restriction  to  limits,  nature  of 319 

Second  sentence,   when  taking  effect  if  first  sentence  in- 
volves   401 (b) 

Segregation  of  prisoners 341,  396-399 

Sentence  of,  continuous;  exceptions 401 


706  INDEX. 

(References  are   to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"  A.  W."  Indicates  Articles  of  War,  and  "  A  pp."  Indicates  Appendix.] 

Confinement — Continued.  Par. 

Summary  court-martial  can  not  impose  in  excess  of  one 

month 44,  A.  W.  14 

Without  hard  labor  should  not  be  imposed 311  ( note  1) 

Witness,  civilian,  in ;  how  testimony  obtained 167,  A.  W.  25 

Confirmation  of  sentence : 

As  affected  by  review  by  Board  of  Review  and  Judge  Advo- 
cate General 399a ;  A.  W.  50J 

As  necessary  to  validity 38,  33a 

As  unnecessary  to  validity 378 (d) 

Manner  of  exercise  of  power ' 379 

Powers  incident  to  power  to  confirm 379 

Sentence  of  death 378 (d) 

Sentence  of  dismissal  of  a  cadet 378 (c) 

Sentence  of  dismissal  of  an  officer 378  (b) 

Sentence  respecting  a  general  officer 378 (a) 

When  by  commanding  general  of  Army  in  the  field 378 (b)  (d)  ; 

A.  W.  48 

When  by  the  President 378 ;  A.  W.  48 

Confirming  authority  (see  also  Commanding  officer)  : 

Action  by,  as  necessary  to  make  sentence  effective 371 

Forwarding  of  records  after  action  by 367 (a) 

Medical  board  on  insanity,  etc.,  of  accused  may  be  convened 

on  own  motion  by 219 (h)  (note) 

Power  as,  under  A.  W.  48,  not  exercisable  by  corps  or  Army 

area  commanders 378(notel) 

Review  of  cases  under  A.  W.  50$,  duties  in  connection  with.    399a 

Confrontation,   right   of 165 ;  A.  W.  25 

Congress : 

Disrespect  toward  Member  of;  penalty 413;  A.  W.  62 

Powers  granted  to,  as  a  source  of  military  jurisdiction 1 

Consanguinity  as  ground  of  challenge 121 

Consent : 

Admission  of  affidavit  not  taken  in  form  of  deposition,  by_      269 
Trial  by  general  court-martial  within  5  days  of  service  of 

charges  only,  in  time  of  peace,  by 77b,  80,  A.  W.  70 

Consequence   of   acts,   presumption   of   law   that   sane   person 

knows 277 

Conspiracy  (see  also  Accomplice)  : 

Acts    and    statements    of    conspirators,    when    admissible 

against  each  other 217,224 

Conspirator  must  waive  his  privilege  before  testifying 217 

Defined,  when  joint  trial  permitted,  examples,  challenge 69 

Nolle  prosequi;  to  secure  testimony  of  conspirator 217 (notes) 

Order  of  proof  on  trial 224 

To  defraud  United  States  through  false  claims 444,  p.  452 ; 

A.  W.  94 


INDEX.  707 

[References  are  to  paragraphs,   except  that   the  tetter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Constitution  of  United  States:  Par. 

Judicial   notice 289 

Rules  of  evidence  in,  as  binding 198 

Source  of  military  jurisdiction 1 

Constructive  breaking  defined 443,  p.  418 

Constructive  condonation,  by  restoration  of  deserter  to  duty 

without  trial;  plea  in  bar 151 

Constructive  pardon,  evidence  to  support  plea  of 273 

Consul,  general  powers  of,  in  certain  named  officers  in  foreign 
places  where  Army  serving 138 (b)  ;  A.  W.  114 

Contempt : 

Action  of  district  attorney  on  constructive 173  (c) 

Authority  of  courts  of  inquiry  to  punish 460 

Authority  'of    military    tribunal    to    punish,    limits,    ap- 
proval   173(a)  ;  A.  W.  32 

Charge  under  A.  W.  96  as  substitute  for  proceedings  in 173  (d) 

Direct  and  constructive  defined 173 (c) 

Persons  who  may  be  punished;  treatment  of  civilians 173 (b) 

Procedure  of  court-martial  in  punishment  of 173 (d) 

Toward    certain    Federal    or    State    officials    by    military 

persons 413  ;   A.  W.  62 

Contemptuous  words.     (See  Disrespect  toward  President,  etc.) 

Continuance : 

Authority  for;  when  and  how  granted;  reference  to  ap- 
pointing authority 139;  A.  W.  20 

Number  not  limited;  extended  delays 141 

Of  a  condition  or  state,  presumption  as  to 278 

Plea  in  abatement  as  ground  for 147 

Reasons  for  required;  absent  witnesses 140 

Contradiction  of  witness.     (See  Witnesses— Contradiction.) 

Convening  authority.     (See  Appointing  authority ;    Reviewing 
authority.) 

Conviction : 

As  including  lesser  offense;  cases  enumerated 377 

Former,  for  same  offense,  how  proved 274 

Forms  for  synopses  of  convictions App.  7 

General  principles  applicable  to  findings 297 

"  Guilty  without  criminality  "  an  improper  finding 303 

In  courts-martial  does  not  disqualify  witness 211 

Joint  charges;  procedure  where  also  acquittal 301 

Lesser  included  offense ;  procedure  for  court 298,  300 

Method  of  voting  requisite  to  finding  of 294 

Not  prevented  by  escape  of  accused  during  trial 36 

Previous.     (See  Previous  conviction.) 

Privilege  of  self -crimination  ceasing  upon 233  (a) 

Votes  necessary  to 295(a) 

With  exceptions  or  substitutions,  described 299 


708  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Copies  (see  also  Documentary  evidence) :  Par. 

Charge  sheets  in  triplicate;  use  of  form App.  5(3) 

Charges  and  accompanying  papers  for  accused 77b ;  A.  W.  70 

Court  of  inquiry,  record  of ;  number 474 

Of  record;  offer  to  accused  noted  in  record 357(b)  (15) 

Of  record  of  general  court-martial  when  not  desired  by  ac- 
cused, disposition 355a 

Record  of  general  or   special  court-martial;   preparation, 

for    accused 117, 357 (b)  (3) ,  359 

Record  of  general  or  special  court,  to  accused;  receipt 366 (b) 

Special  courts-martial  records,  when  appended  to 358 (d) 

Corps  area: 

Commander,  successor  on  death  or  disability  of 19 

Commander    without   power    to    confirm    sentences    under 

A.  W.  48 378 (note  1) 

Commander's  duties  when  officer  arrested  without  charges 

preferred 50 

Commander's  power  to  appoint  general  courts,  when  termi- 
nated or  suspended 18 

Habeas  corpus,  telegraphic  report  to  commander  on  writ  out 

of  Federal  court 169(a),479 

Judicial  notice  of  existence 289 

Judicial  notice  of  general  or  special  orders,  discussed. 289 

Witnesses,  duties  of  commander  respecting 163, 164 

Corpus  delicti,  defined;  proof;  sufficiency 225(c) 

Corroboration : 

Admissions  in  statement  before  court-martial  by  accused 

require 292 

Confession,  uncorroborated,  not  sufficient  basis  for  charges.        70 

Corpus  delicti;  nature  and  order  of  proof 225 (c) 

Of  coconspirator  or  accomplice  not  required  but  caution 

necessary 224 

Perjury ;   by  second   witness  or  other  form  of  evidence ; 

exceptions 248 

Prior  statement  as,  usually  not  admissible ;  exceptions 258a 

Prior  statement  of  identification  of  accused  as 223 (a) 

Single   witness   sufficient   except   in    treason    and    certain 

cases  of  perjury 248 

Treason ;  by  two  witnesses  to  overt  act 248 

Counsel  (see  also  Defense  counsel) : 

Analysis  of  evidence  by ;  discussed 196 

Appointment  of,  when  selected  by  accused 108 ;  A.  W.  17 

Civilian,  not  provided  at  Government  expense 108;  A.  W.  17 

Closed  sessions,  not  present  at ;  duties  in  open  court 101 

Courts  of  inquiry 463;  A.  W.  99 

Defense  counsel.     (See  Defense  counsel.) 


INDEX.  709 

[References  are   to   paragraphs,   except   that    the   letter  "p"    indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Counsel — Continued.  Par 

Depositions  taken  upon  oral  interrogatories 181i(c) 

Examination  of  depositions  before  trial,  permitted 266 

Freedom  of  expression  to  the  court ;  limitations 107e,  291 

Individual ;  appointment  and  availability  of 108 

Individual;  duties,  defense  counsel  as  associate.  109, 196 (note)  ; 

A.  W.  17 

Individual ;  preparation  for  trial,  excuse  from  other  duties—  109a 
Individual ;  presence  or  absence  at  opening  and  after  recess, 

in   record 357(b)  (37,  38) 

Individual ;  requesting  witnesses  ;  duties  of  defense  counsel-      161 

Individual ;  right  to  interview  accused  and  witnesses 110 

Informing  court  as  to  member  being  accuser  or  witness 129 

Insanity,  etc.,  of  accused  raised  at  trial,  duties 219 

Investigation  of  charges,  when  counsel  permitted  at 76a(3) 

Opening  statement  as  to  defense;  improprieties 197 

Process  to  obtain  witnesses,  request  for 159 

Questions  in  writing,  when  required 111 

Record  to  show  opportunity  to  introduce  individual..  357(b)  (10) 
Record  to  show  presence  of  individual,  at  all  open  ses- 
sions  84,  357(b)(ll) 

Rehearing,  rights  as  to  record,  etc.,  on 377a 

Represents  an  escaped  accused  as  though  he  were  present-        36 

Summary  court  acts  for  both  sides 351  (c) 

Where  seated  in  court 83 

Counterfeit  money,  drunkenness  as  defense  to  passing 285 

Countersign,  improper  use  of: 

Capital  offense  in  time  of  war 41 ;  A.  W.  77 

Giving   different   countersign ;    analysis   and   proof   of   of- 
fense   427  ;  A.  W.  77 

Giving  different  countersigns;  definitions  and  principles —      427 
Giving  different  countersign;  form  for  specifications—  App.  6(62) 
Making    known    countersign;    analysis    and    proof    of   of- 
fense  427  ;  A.  W.  77 

Making  known  countersign;  definitions  and  principles 427 

Making  known  countersign;  form  for  specifications App.  6(61) 

Courts,  civil.     (See  Civil  courts.) 

Court-martial    orders.       (See    General    court-martial    orders; 

Special  court-martial  orders.) 

Courts-martial.     (See  also  the  specific  court-martial.) 
Jurisdiction — 

Control  of  person  of  accused;    freedom    in    its    pres- 
ence   47(c),87 

Conditions  necessary  to  show,  enumerated 34 

Defined ;  special  and  limited  ;  must  conform  to  statute.        32 


710  INDEX. 

[References  are   to   paragraphs,   except  that  the   letter  "p"   Indicates  pnge, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Court-martial — Continued. 

Jurisdiction— Continued.  par- 

Entirely  criminal;  can  not  award  damages  or  collect 
debts 33 

Escape  during  trial  does  not  divest 36 

In  general,  for  trial  of  offenders  against  military  law_    3(b) 

Nature  of,  discussed  and  defined 32,  33,  33a 

Not  territorial;  difference  from  civil  courts 37 

Termination  by  separation  from  service;  exceptions.        38 

Wrongful  act  of  accused  can  not  divest 36 

Members — 

Competency  issue  by  preponderance  of  evidence 296 

Detail  of  best  qualified ;  two  years'  experience.  6(c)  ;  A.  W.  4 

Marine  Corps  officers,  when  eligible 10 ;  A.  W.  2 

No  distinction  between  regular  and  other  officers 11 

Not  to  communicate  finding  or  sentence  to  reporter  or 

clerk 305 

Reserve  officers  eligible  when  ordered  to  active  duty 6(c) 

Retired  officers,  when  eligible 9(b) 

Suspended  officer  ineligible 9(a),314 

Temporary  officers,  when  eligible  as 9(c) 

Volunteers  eligible  from  date  of  muster  or  acceptance.    9(c) 

What  officers  competent  and  incompetent  to  serve 6; 

A.  W.  4,  8-10 

Nature  discussed 32,  33,  33a 

Powers,  appointing  authority  can  not  control  exercise 20 

Proper  court  for  trial,  considerations  governing 78 

Questions  of  witnesses — 

Court  or  a  member  may  ask 253 

Subject  to  rules  of  evidence ;  care  requisite 253a 

Recommendation  of  suspension  of  dishonorable  discharge 321 

Records.     (See  Records  of  courts-martial.) 
Revision   proceedings.      (See   Revision.) 

Three  kinds — general,  special,  and  summary 5 ;  A.  W.  3 

Courts  of  inquiry: 

Challenges  for  cause  only;  one  at  a  time 4G4;  A.  W.  99 

Class  B,  to  inquire  into  classification  of  officers  as  of_J_  447a,  4;~2 

Composition  ;  three  or  more  officers 453  ;  A.  W.  98 

Conclusions  as   to   facts   and,   when   ordered,   opinion  on 

merits 469 

Conclusion,  dissenting,  authorized 469 

Convening  order,  contents 455 

Counsel,  privilege  may  be  allowed  accuser  or  any  officer  in- 
volved         403 

Counsel,  right  of,  in  party  whose  conduct  being  inquired 

into 463 ;  A.  W.  99 


INDEX.  711 

[References  are  to   paragraphs,   except  that   the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Courts  of  inquiry— Continued.  Par. 

Depositions  ;  same  rules  as  for  courts-martial 468  ;  A.  W.  25,  26 

Exercise  military  jurisdiction . 8(d) 

Information  of  superior  officer,  a  proper  subject  for 452 

Interpreter;  appointment  and  compensation 457 

Jurisdiction  of  conduct  of  officers   and   soldiers   only,   in 

service 450;  A.  W.  97 

Jurisdiction  of  subject  matter;  principal  uses  of 452 

Limitation  upon  power  to  convene  of  commanding  officer—      448 

Members;  suspended  officer  ineligible 314 

Membership  in,  as  ground  for  challenge  at  court-martial 121 

New  member,  testimony  read  to . 465 

Oath  of  interpreter  as  in  courts-martial 466 ;  A.  W.  101 

Oath  of  members ;  form,  administered  by  recorder.  466 ;  A.  W.  100 
Oath  of  recorder  ;  form,  administered  by  president-  466 ;  A.  W.  100 

Oath  of  reporter  as  in  courts-martial , 466 ;  A.  W.  101 

Oath  of  witnesses  as  in  courts-martial 466 ;  A.  W.  101 

Ordered    to    inquire    into    class    B    classification    of    offi- 
cer  3(d)  (note) 

Presence  of  party  whose  conduct  being  investigated,  not  es- 
sential but  opportunity  ordjnarily  given 462 

Presence,  opportunity  always  given  class  B  officer 462 

President  has  power  to  appoint  reporter  and  interpreter 457 

President  or  recorder  may  administer  certain  oaths 138 (b)  ; 

A.  W.  114 

Propriety  of  court-martial,  a  proper  subject  for 452 

Publication  of  proceedings  permitted  but  not  required 472 

Rank  of  members  to  that  of  officer  appearing  before 456 

Recorder,  absence  of,  procedure 465 

Recorder  for  each ;  not  adviser  or  prosecutor  but  may  assist-     454 ; 

A.  W.  98 

Record  admissible  in  evidence,  in  what  cases 475 

Record,  authentication  of 473 

Records,  disposition  of 474 

Reduced  membership  of  court;  procedure 465 

Reporter   always   appointed  on  class   B   classification    in- 
quiry         457 

Reporter ;  appointment,  compensation,  enlisted  man  eligible.      457 

Retired  officers  on —      453 

Secrecy  not  enjoined  but  prejudicial  conduct  to  divulge  rec- 
ommendations, etc 470 

Statute  of  limitations  not  applicable  to 451 

Vindication  of  character,  a  proper  subject  for 452 

When  and  by  whom  ordered 447;  A.  W.  97 

Witnesses;  examination,  cross-examination,  incriminating 
questions 467  ;  A.  W.  24, 101 


712  INDEX. 

[References  are   to  paragraphs,   except   that   the  letter  *'p"   indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Courts  of  inquiry — Continued.  Par. 

Witnesses ;  refusal  to  appear  or  testify,  penalty 459 ;  A.  W.  23 

Witnesses;  same  powers  to  summon  and  examine  as  given 

court-martial  and  trial  judge  advocate 458 ;  A.  W.  101 

Cowardice : 

Drunkenness  as  showing  lack  of  knowledge  or  intent 286 

Misbehavior     before     the    enemy;     defined,     proof,     pen- 
alty   425,  pp.  377, 378 ;  A.  W.  75 

Publication  of  officer's  sentence  in  newspapers;  non-asso- 
ciation with  him 347 ;  A.  W.  44 

Crimes  and  offenses: 

(See  the  specific  offense  by  name.) 

Abolition  as  affecting  privilege  against  self-crimination-  233 (a) 

Conviction  of  attempt  on  specification  alleging  completed 

crime,  proper 300 

Definitions  and  principles  under  A.  W.  92,  93 442,  p.  408 

Evidence  of  conviction  of  crime  to  impeach  witness 258 

Executive  order  as  to  maximum  punishment,  etc 348,  349 

General  court-martial,  how  and  when  punishable  by 40; 

A.  W.  42,  45 

Intent  in  connection  with ;  discussed,  examples 280,  281 

Jurisdiction  of  civil  and  military  courts 35 

Military  jurisdiction  over,  not  territorial 37 

Not  capital  and  not  elsewhere  in  Articles  of  War,  punish- 
able under  A.  W.  96 446,  p.  463 

Of  civil  nature,  when  executed  in  penitentiary ;  described.  40, 338 ; 

A.  W.  42 

Presumption  of  fact  from  preparation  to  commit 278 

Specific  article  of  war  used  where  provided 74 (e) 

Statute  of  limitations 149 

Transitory  provision  concerning 487 

Criminal  prosecution,  removal  to  Federal  courts  when  against 

member  of  military  service 484 

Cross-examination.     (See  Witnesses.) 
Cross-interrogatories.     (See  Depositions.) 

Cruel  and  unusual  punishments  prohibited 344 

Cruelty,  wife  may  testify  against  husband  accused  of 228 

Cuba,  fees  and  mileage  of  civilian  witnesses  in 185 

Custody  distinguished  from  possession 443,  p.  426 

Custom,  punishments  now  obsolete  by,  enumerated 345 

Custom  of  war  as  source  of  military  law 2(d) 

Damages : 

Courts-martial  can  not  award 33 

Reparation  ;  duty  of  commanding  officer,  penalty 89,  439  • 

A.  W.  105 
To  military  property  as  offense;  analysis  and  proof.  433 ;  A.  W.  83 


INDEX.  713 

LKefei-ences  are   to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Dangerous  weapon  defined 443,  p.  447 

Deadly  weapon,  malice  presumed  from  use  of 277 

Death,  investigation  of  by  summary  court : 

Persons  suspected  of  criminal  responsibility,  disposition  of_      483 

Procedure  described , 483 ;  A.  W.  113 

Death  sentence  (see  also  Capital  offenses)  : 

Commuted  sentence  of,  may  be  executed  in  penitentiary 338; 

A.  W.  42 

Confirmation  by  President,  when  required 378 (d)  ;  A.  W.  48 

Execution.     (See  Execution  of  death  sentence.) 

Forfeiture  of  pay  and  allowances  not  implied  from 324 

Officers,  may  be  imposed  on 310 

Procedure  where  insufficient  votes  to  sustain  mandatory 309 

(note  2) 

Record  to  show  necessary  concurrence 357 (b)  (47) 

Requires  prior  action  of  board  of  review  and  Judge  Advo- 
cate General 371 ;  A.  W.  50£ 

Review  by  board  of  review  and  Judge  Advocate  General 399a ; 

A.  W.  50i 

Soldiers,  may  be  imposed  on 311 

Suspension  of,  until  pleasure  of  President  known 391 ;  A.  W.  51 

Voting ;  all  members  must  agree  whether  mandatory  or  dis- 
cretionary       308 

Voting;  number  of  votes  required  for  conviction  and  sen- 
tence   90a,  295,  308,  346 ;  A.  W.  43 

Voting;  -where  mandatory,  wrhere  discretionary 295 (a)  (b) 

When  authorized  ;  when  mandatory  ;  cases  enumerated 40, 

40(notel),41 
Debts : 

Courts-martial  can  not  collect 33 

Stoppage  by  courts-martial  to  pay,  invalid 325 

When  nonpayment  a  military  offense  and  when  no  action 

taken 71 

Deceased  persons : 

Dying  declarations  as  exception  to  hearsay  rule 221a(l),222 

Disposition  of  effects  of 482 ;  A.  W.  112 

Statements  of,  in  general,  when  admissible  as  hearsay  ex- 
ceptions  221a  (10) 

Declarations  against  interest  as  evidence 226 

Decorum  at  courts-martial 86 

Defense : 

Convening  authority  alleged  to  be  accuser,  as 17 

Ignorance  of  Articles  of  War  as 282 

Ignorance  of  fact  as 283 

Ignorance  of  law  as 282 

Member  of  court-martial  as  witness  for 131  (b) 


714  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "p"   Indicates  pag«, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Defense  counsel  (see  also  Counsel)  :  Par. 

Aid  in  providing  authentic  sources  for  judicial  notice 289 

Appointment  for  each  general  or  special  court-martial 31a ; 

A.  W.  11 

Arrest  by  court  or  president,  not  subject  to 89 

As  associate  counsel  of  accused 107b,  196  (note)  ;  A.  W.  17 

Assistant.     (See  Assistant  defense  counsel.) 

Challenge,  not  subject  to 107f,  120 

Clerks  or  orderlies  for 107g 

Closed  sessions,  not  present  at ;  duties  in  open  court 101 

Commanding  officer  to  make  recommendations  as  to  chang- 
ing, etc 7  (a) 

Consulted  in  preparation  of  court-martial  record 355 

Depositions  taken  upon  oral  interrogatories,  presence ISli(c) 

Examination  of  order  of  reference  for  trial  required 97 

Excuse  from  attendance  at  court 107i 

Excuse  from  part  In  trial,  when  allowed 107b 

Excuse  on  account  of  interest  or  hostility 107f 

Expert,  duties  relating  to  employment  of 192 

Freedom  of  expression  to  the  court,  limits 107e,  291 

General  duties  enumerated 107b 

Informing  court  as  to  member  being  accuser  or  witness 129 

Interview  with  accused  and  witnesses,  right  of 110 

Investigation  of  charges,  when  permitted  at 76a(3) 

Legal  advice  or  assistance  obtained  in  open  court 107d 

Legal  adviser  of  court,  with  trial  judge  advocate 107d 

Not  challengeable ;  relief  in  certain  cases 107f 

Plea  of  guilty,  requesting  explanation  of 99 

Preparation  for  trial ;  excuse  from  other  duties 109a 

Presence  or  absence  at  opening  and  after  recess,  in  record-        84, 

357(b)(37,38) 

Process  to  obtain  witnesses,  request  for 159 

Questions  in  writing,  when  required 111 

Record  to  note  name,  presence,  absence,  etc 357 (b)  (7-9, 11) 

Rehearing;  detail  preferable  of  same 377a(note2) 

Rehearing,  rights  as  to  record,  etc.,  on 377a 

Relation  to  individual  counsel 108,109;  A.  W.  17 

Revision  proceedings,  presence  at 352 

Selection,   rank 107a 

Term  as  including  assistants 1071 

Where  seated  in  court - 83 

Whole  truth  to  be  presented  by 107c 

Witnesses  designated  by,  summoned 161 

Definitions : 

Abandon 42o,  p.  378 

Abuse 438 


INDEX.  715 

I  References  are  to  paragraphs,   except  that  the  letter  "p"  Indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Definitions — Continued.  .  Par. 

Accuser 17,  22 

Additional  charges : 73 

Appointing  authority 369 

Arrest 46c ;  A.  W.  69 

Arson 443,  p.  416 

Articles  of  War,  for  purposes  of 4, 8 ;  A.  W.  1 

Assault 443,  p.  440 

Assault  with  a  dangerous  weapon,  etc 443,  p.  447 

Assault  with  intent  to  commit  a  felony 443,  p.  439 

Assault  with  intent  to  commit  manslaughter 443,  p.  444 

Assault  with  intent  to  commit  rape 443,  p.  444 

Assault  with  intent  to  commit  sodomy 443,  p.  445 

Assault  with  intent  to  do  bodily  harm 443,  p.  447 

Assault  with  intent  to  murder 443,  p.  443 

Assault  with  intent  to  rob 443,  p.  445 

At  or  near 74  (g) 

Attempt 417 

Attempt  to   create  a  mutiny  or  sedition 417  A.  W.  66 

Attempt   to  desert I 409  A.  W.  58 

Attempt   to   strike   noncommissioned   officer 416  A.  W.  65 

Attempt   to    strike   superior   officer 415  A.  W.  64 

Battalion 4  (note),  A.  W.  1 

Beginning   a   mutiny : 417 

Battery 443,  p.  442 ;  446,  p.  464 

Breaking 443,  p.  418 

Burglary # 443,  p.  418 

"Capital   case,"   under  A.   W.   12 263 

Capital  case,   under  A.  W.  27 272 (note) 

Causing  a   mutiny 417 

Certificate 443,  p.  433 

Challenge  to  fight  a  duel 441 

Character  evidence 257 

Charge 61 

Charges  61 

Circumstantial    evidence 202(3)203 

Closed   session 91 

Clothing 434 

Collateral    facts 259 (note) 

Commander  of  guard 421-422 

Commanding  officer 418,422,424 

Commanding  officer  for  the  time  being 374 

Commanding  officer,  with  reference  to  court  of  inquiry..      448 
Commanding    officer,    with    reference    to    summary    court- 
martial ,26 

Company 4  (note),  A.  W.  1 


716  INDEX. 

[References  are  to   paragraphs,   except   that   the  letter  "  p "   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Definitions — Continued.  Par. 

Concealment    405 

Conduct  unbecoming  officer  and  gentlemen 445 

Confinement 218 

Constructive    breaking 443,  p.  419 

Constructive    condonation 151 

Constructive   contempt 173 (c) 

Contempt 173  (c) 

Contemptuous  words 413 

Corpus  delicti 225  (a) 

Corroborative  evidence 248 

Counsel  for  the  accused 196 (note) 

Countersign 427 

Credibility 256 

Dangerous    weapon :_  443,  p.  447 

Declaration 443,  p.  433 

Delay 418 

Deposition 443,  p.  433 

Depredation 439 

Desertion 284  ( a )  409 ;  A.  W.  28,  29,  58 

Detached  battalion 28 

Detached   unit 28 

Detachment 28 

Direct  contempt 173 (c) 

Direct  evidence . 202 

Discovered 411 

"  Dismissal  of  an  officer  "  case,  under  A.  W.  27 272 (note) 

Disobedience '. 415 

Disorder 419 

Disrespectful    behavior 414 

Disrespectful   words 413 

Double  questions 254 (b) 

Drunk 74 

Drunkenness 435 

Duel 441 

Duty 435 

Dwelling  house 443,  p.  418 

Embezzlement 443,  p.  431 

Enemy 425,  p,  377 ;  431 

Exciting  a  mutiny 417 

Execution  of  office 416 

Expert  witness * 218 

False  writing 443,  p.  436 

Felony  under  Penal  Code 337 

Forgery 443,  p.  435 

Found  drunk  on  duty ._      435 


INDEX.  717 

[References  are  to   paragraphs,   except   that   the  letter   "  p "   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Definitions — Continued.  Par. 

Fraudulent  enlistment 149(3)  (f),  405 

Fray 419 

General  prisoner 74  (j) 

Hearsay   rule 221 

In  the  military  service  of  the  United  States 9 

Indirect  evidence 202 

Interested 437 

Interlocutory  questions 89a(5) 

Joining  in 417 

Joint  offense 69 

Judicial   notice 289 

Jurisdiction  of  a  court-martial 32 

Knowingly 406 

Knowledge 441 

Larceny 443,  p.  424 

Law  of  the  District  of  Columbia ! 338 (c) 

Lawful  order 415 

Leading  question 254 

Legal  record  of  a  court-martial 355 

Loss - 433,  434 

Malice 442,  p.  410 

Malice  aforethought 442,  p.  410 

Manslaughter 443,  p.  414 

Martial  law  as  applied  to  Army 2(c) 

Martial  law  at  home 2(b) 

Material    evidence 202 

Mayhem 443,  p.  416 

Military    Government 2 (a) 

Military  law 2(d) 

Misappropriation 444,  p.  457 

Misbehavior 425,  p.  377 

Misrepresentation 197 

Mitigation   of  punishment 380 

Motion  to   sever 156 

Murder 442,  p.  408 

Muster 407 

Mutiny 417 

Negligence 423 

Nolle  prosequi 158 

Oath 443 

Officer 4  (note),  A.W.I 

Officer  commanding  for  the  time  being 374 

On  duty 435 

On  or  about 74 (g) 

21358°— 20 46 


718  INDEX. 

[References,  are  to  paragraphs,   except   that  the   letter   "  p "   indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  M  App."  Indicates  Appendix.] 

Definitions — Continued.  Far. 

Pardon 150 

Parole 427 

Perjury 443,  p.  433 

Person  (as  spy) 432 

Persumption  of  fact 278 

Presumption  of  law 277 

Pretense 415 

Previous   conviction 307 

Prima  facie  evidence 279 

Prisoner „ 421,  422,  423 

Privileged   communications 227 

Prosecutor 17,  22 

Provoking  speeches  and  gestures 440 

Quarrel 419 

Rape 442,  p.  411 

Reasonable  doubt 288 

Relevant    evidence 202 

Relieves  (the  enemy) 431 

Reproachful  speeches  and  gestures 440 

Res    gestre 223 

Reviewing   authority 369 

Riot 439 

Robbery 443,  p,  422 

Routine  duty 66 

Safeguard 428 

Scandalous  and  disgraceful  offenses 74 (m) 

Sedition 417 

Sentinel 436 

Sentinel's  post 436 

Soldier 4  (note),  A.  W.  1 

Specification 61 

Spoil 439 

Spy 432 

Statute  of  limitations 149 

Suffering  loss,  etc.,  of  military  property 433 

Superior   officer 414 

Testimonial    evidence 202,  207 

Threat,  under  A.  W,  68 419 

Trespass 443,  p.  430 

Trial 149  (3c) 

Tried •  149  (3c) 

Unlawfully  (in  definition  of  murder) 442,  p.  408 

Voluntary  confession 225 (b) 

Waste 439 

Weapon,  dangerous 443,  p.  447 


INDEX.  719 

[References  are  to  paragraphs,  except   that  the  letter   "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Definitions — Continued.  Par. 

Willful 405 

Willful   disobedience 415 

Willful   injury 434 

Willful    loss 433,  434 

Definitions  of  crimes  and  offenses  under  A.  W.  92  and  93 442,  443 

Degrading  questions,  can  be  asked  if  material;  distinguished 
from  incriminating  questions \ 233 

Delay.     (See  Unnecessary  delay.) 

Delegation  of  powers: 

Of  disciplinary  powers,  not  permitted . 333 

Of  power  to  appoint  courts-martial,  not  permitted 18 

Delivering  less  than  amount  called  for  by  receipt,  definitions,  ex- 
amples, proof 444,  p.  454 ;  A.  W.  94 

Delivery  of  offenders  to  civil  authorities.     (See  Civil  authori- 
ties.) 

Dental  treatment,  refusal  to  submit  to;  an  offense,  procedure 
if  doubt L 68 

Department.     ( See  Military  department.) 

Deposit  of  pay : 

Court-martial  can  not  adjudge  forfeiture 326 

Desertion  forfeits  principal  and  interest 326 

Depositions  (see  also  Former  testimony)  : 

Admissible  under  A.  W.  25,  when 263 

Admissibility    as   evidence;    same    rules    applicable,    lead- 
ing questions 265,  268 (note) 

Affidavits  not  taken  as,  not  admissible   unless  expressly 

consented  to 269 

Before  whom  taken 137,  175 ;  A.  W.  26 

Capital  case,  adduced  for  defense  only 165, 174 ;  A.  W.  25 

Case     before     special     court-martial     under     A.     W.     25 

not    "  capital  " 263 

Certain  officers  authorized  to  take,  under  R.  S.  188 138 

Civilian  witness  in  confinement 167 ;  A.  W.  25 

Competency  of  witnesses,  same  rules  applicable  to 265 

Courts  of  inquiry,  same  rules  as  for  courts-martial 468; 

A.  W.  25, 26 

Delayed,  how  traced 178 

Designation  of  proposed  deponent  by  official  title 179 

Examination  before  trial  by  accused  or  counsel 266 

Fees  of  civil  officers,  law  of  place  determines. 181 

For  defense  in  capital  cases;  cross-examination  permitted-      264 

Foreign  country,  taking  in;  procedure 182 

Form  for App.  17 

Interrogatories,  form  for App.  17 

Interrogatories,  procedure  for  submitting 176 

Interrogatories,  voucher  and  subpoena  to  accompany 177 (c) 


720  INDEX. 

[References  are  to  paragraphs,  except   that   the  letter  "  p "    indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Depositions — Continued.  Par. 

Interrogatories,  when  taken  upon  oral ;  procedure 174a,  181i 

Notation  in  records  as  to  receipt,  how  offered,  appending, 

etc 357(b)  (31) 

Objections;  method  of  making 265, 268 (note) 

Offering  in  part ;  procedure,  court  may  direct  reading 268 

Officer  designated  to  take,  may  administer  oaths_  138  (b)  A.  W.  114 

Perfunctory  examination  to  be  prevented 181  (d) 

Procedure  at  trial  as  to  introduction  of 267,  268 

Procedure  to  obtain,  in  general,  prescribed 174-182 

Receipt  and  presentation  of  accomplished,  with  vouchers-  181  (e) 

Responsiveness,  care  to  secure 180 

When  admissible 174;  A.  W.  25 

Depredation.     (See  Committing  depredation  or  riot.) 

Deprivation  of  privileges,  sentence  of,  continuous,  exceptions 401 

Descriptive  and  assignment  card : 

Not  original  paper  nor  admissible  in  evidence  as  such 238a 

Desertion : 

Absence  without  leave,  included  offense 377 

Absence  without  leave,  presumption  from  continuing 284 

Advising,  aiding,  etc.,  desertion;  analysis  and  proof  of  of- 
fense   410 ;  A.  W.  59 

Advising,  aiding,  etc.,  desertion  ;  capital  offense  in  war  time_      41 ; 

A.  W.  59 

Analysis  and  proof  of  offense 409 ;  A.  W.  58 

A.  W.  28,  a  rule  of  evidence  and  not  a  punitive  article 74 (n) 

284(a) 

As  joint  offense,  proof  necessary — _ 69 

Attempt  to  desert ;  analysis  and  proof  of  offense 409 ;  A.  W.  58 

Attempt  to  desert;  forms  for  specifications App.  6(21,22) 

Attempt  to  desert,  included  offense 377 

Attempt  to  desert;  nature  of  intent  should  be  shown 409 (note) 

Authority  of  citizen  to  arrest  deserters 59 

Authority  of  civil  officer  to  arrest  deserters-, 58,  A.  W.  106 

Capital  offense  in  time  of  war;  punishable  as  court  may 

direct  in  peace ;  Executive  order 41 ;  A.  W.  58 ;  p.  277 

Constructive  condonation  in  bar  of  trial 151 

Conviction  of,  confirmation  by  whom  required 378 (d)  A.  W.  48 

Corpus  delicti  established  by  proof  of  desertion 225 (c) 

Definitions  and  principles . 409 

Disapproval  of  conviction ;  grounds  to  be  stated,  purpose 388 

Distinct  and  specific  intent,  independent  of  act,  essential 280 

Drunkenness  as  showing  lack  of  intent 286 

During  trial,  no  effect  on  jurisdiction  of  court 36 


INDEX.  721 

[References  are  to  paragraphs,   except   that  the  letter   "  p  **   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Desertion — Continued.  Par. 

Effect  of  honorable  and  dishonorable  discharges  on  charge 

of 38  (e) 

Entertaining  and  retaining  of  deserter  by  officer 411 ;  A.  W.  60 

Evidence  to  prove 284 

Finding  or  pleading  absence  without  leave  under  charge  of 

298,  300 

Followed  by  fraudulent  enlistment 74 (n)  ;  284,  409,  A.  W.  29 

Forfeiture  of  deposits 326 

Forms  for  specifications App.  6(15-24) 

Fraudulent  enlistment,  joinder  with  charge  of 74 (n) 

Hearsay  evidence,  instance  of,  in  trial  for : 221(1) 

In  peace  time;  three-year  limitation— 149(2) 

In  war  time;  no  limitation  of  time 149(2)  ;  A.  W.  39 

In  war  time,  penitentiary  offense ;  rule  to  be  applied— 40, 

338 ;  A.  W.  42 

Intent  not  expressed  in  A.  W.  58  but  to  be  proved 281 

Joint  offense,  when  chargeable  as 69 

Minor  may  be  arrested  and  tried  for : 60 

Morning  report,  entries  in,  as  proof  of  absence  without  leave.     284 
Officer  quitting  post  before  resignation  accepted,  a  deserter.      281, 

284(a);  A.W.28 

Payment  of  reward  for  deserter  no  proof  of  intent 284 

Repeated,  in  time  of  peace,  penitentiary  offense;  rule  to 

be  applied 40,  338,  396 ;  A.  W.  42 

Requisite  intent  one  of  three  enumerated  kinds 281 

Retaining  a  deserter.     (See  Retaining  a  deserter.) 

"  Short  desertion  "  principle  adopted  in  A.  W.  28_  284 (a)  (3)  ;  409 

Statutory  rules,  in  certain  cases,  as  to 284 (a)  ;  A.  W.  28 

Time  lost  to  be  made  good . 38  (note)  ;  A.  W.  107 

Trial  for,  after  trial  for  absence  without  leave 149(3)  (2) 

Unsustained   charge  prevents  stoppage   of  pay   to  collect 

reward  paid 329 

War  Department  policy  regarding  punishments  for 340 

Destruction  of  records  before  action  of  reviewing  authority —      368 

Detached  enlisted  men  part  of  Regular  Army 4 (a)  (note  a) 

Detached  officers  part  of  Regular  Army 4(a)  (note  a) 

Detachment : 

Commanding  officer's  summary  court  powers,  although  part 

of  brigade 29 

From  command,  effect  on  power  to  appoint  general  courts- 
martial 18 

General  courts-martial ;  when  appointed  for 14 ;  A.  W.  8 

Special  courts-martial ;  when  appointed  for 21 ;  A.  W.  9 

Summary  courts-martial ;  when  appointed  for 25 ;  A.  W.  10 

Term  denned  a*nd  discussed 28 


722  INDEX. 

[References  are  to  paragraphs,   except   that   tb«  letter  **  p  **   Indicates   page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Detention  of  pay:  Par. 

Executive  order  limiting  amount. p.  283 

Forfeiture  of  pay  may  be  mitigated  to 382 

Found  to  be  effective  punishment 342 

In  whole  or  part;  Executive  order ;  A.  W.  14 ;  policy  of  War 

Department 328,  349 ;  A.  W.  14 

In  whole  or  part,  legal  sentence  for  officers 310 

In  whole  or  part,  legal  sentence  for  soldiers 311 

Paid  at  time  of  discharge p.  286  (VIII) 

Summary  court  limited  to  two-thirds  of  one  month's  pay 44 ; 

A.  W.  14 

Direct  evidence  defined 202 

Direct  examination.      (See  Witnesses.) 

Disapproval  of  sentence,  effect  of.     (See  also  Sentence.) 372 (a) 

Discharge : 

Accused  found  abnormal  mentally 76 (b) 

(6,10);  76(c)(2);  76(note) 

Before  expiration  of  term,  methods  stated 320 ;  A.  W.  108 

Certificate  to  be  furnished  enlisted  man  of A.  W.  108 

Dishonorable.      (See  Dishonorable   discharge.) 

Habeas  corpus.     (See  Habeas  corpus.) 

Liability  of  officer  for  embezzling  certain  funds  continues 

after 444,  p.  459 ;  A.  W.  94 

Liability  to  trial  by  court-martial  after ;  cases  enumerated 38 

Obtained  by  fraud;  cancellation,  punishment 38(d) 

Officer  discharged  under  selective  service  act  not  entitled 
to  trial 38(b)(note) 

Disciplinary   barracks : 

As  place  of  confinement  in  place  of  penitentiary.  396,  397 ;  A.  W.  42 

Clemency  applications  in  case. of  prisoners  in 402 

Propriety  of  designating  as  place  of  punishment  discussed-    342a 

Remission  of  suspended  sentences  by  Secretary  of  War_ 392, 

393;  A.W.52 
Treatment  of  deserters  at 340 

Disciplinary  battalion : 

Assignment  to,  as  mitigated  punishment 382 

Assignment  to,  legal  sentence  for  soldier 311 

Disciplinary  punishment : 

Commanding  officer  may  treat  charges  as  involving  case 

only  for 76a(2,  4,  7, 11, 12) 

Disposal  of  case  after  charges  received  under  A.  W.  104 76a 

(2,  4,  7,  11,  12) 

Exercise  of  power  an  exercise  of  military  jurisdiction 3(c) 

Powers  of  commanding  officer  enumerated  and  discussed 333 ; 

A.  W.  104 
Prison  discipline,  matters  of,  named * .      345 


USTDEX.  72  3 

[References  are  to  paragraphs,    except   that   the  letter  "p**   Indicates  page, 
"A.  W."  indicates  Artietes  of  War,  and  "  App."  Indicates  Appendix.] 

Disciplinary  punishment — Continued.  Par. 

Sentence  of  general  prisoner  not  to  interfere  with  prison 

discipline 330 

Discovered,  defined  as  to  discovery  that  soldier  a  deserter 411 ; 

A.  W.  GO 

Discredit,  conduct  teading  to  bring,  etc.     (See  Conduct  of  a  na- 
ture to  bring  discredit  tipan  the  military  service.) 
Discretionary  sentence.     (See  Sentence.) 

Disgrace  to  service,   how   pleaded _, 74  (m) 

Disguise,  presumption  of  fact  arising  from 218 

Dishonorable  discharge: 

Clemency  power  not  affected  by d 402 

Executive  order  as  to  propriety  of  adjudging p.  285  (VII) 

Forfeiture  of  pay  and  allowances  not  implied  from 324 

General   cpurt-martial  only  may  impose 320;  A.  W.  108 

Legal  sentence  for  soldiers-., 311 

Not  suspended;  sentence  requires  prior  action  of  board  of 

review  and!  Judge  Advocate  General 371;  A.  W.  50i 

On  account  of  previous  convictions _„ p.  284 

Procedure  where  insufficient  votes  to  adjudge  mandatory.      309 

(note  2) 

Releases  from  all  military  offenses  in  any  enlistment ;  ex- 
cept A.  W.  94 38 (e) 

Review  by  board  of  review  and  Judge  Advocate  General  of 

cases 399a  ;  A.  W.  50* 

Sentence  may  be  commuted  but  not  mitigated  if  providing 

only , 382 

Sentence  providing,  with  other  punishments,  may  be  miti- 
gated, how '     382 

Special  court-martial  can  not  adjudge 42 ;  A.  W.  108 

Summary  court-martial  can  not  adjudge 44  ;  A,  W.  108 

Suspension.     (See  Suspension  of  sentence.) 

To  take  effect  at  date  during  confinement  to  be  designated, 

illegal 320 

Dismissal : 

Clemency  power  not  affected  by_ 402 

Conviction  under  A.  W.  95  precludes  any  other  punishment-      312 

For  what  offenses  mandatory , 40 (note.)  ;  A.  W.  95 

Forfeiture  of  pay  and  allowances  not  implied  from 324 

Legal  sentence,  with  or  without  confinement,  for  officers 310 

Liability  of  officer  for  embezzling  certain  funds  continues 

after 444,  p.  459 ;  A.  W.  94 

Liability  to  trial  by  court-martial  after ;  cases  enumerated-        38 
No  case  referred  to  special  court-martial  is  a  case  extending 

to,  under  A.  W.  27 272, 


724  INDEX. 

[References  are   to  paragraphs,   except  that   the  letter  "p"   Indicates   page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Dismissal — Continued.  Par. 

Not  suspended;  sentence  requires  prior  action  of  board  of 

review  and  Judge  Advocate  General 371 ;  A.  W.  50$ 

Of  cadet,  confirmation  by  President  required 378 (c) 

Of  charges,  on  investigation 76a(l,  6, 11, 12), 

76b(l,6,10),76c(2,  3),  76 (note) 
Of  officer ;  confirmation  by  President  in  time  of  peace ;  rule 

in  time  of  war 378  (b)  ;  A.  W,  48 

Of  officer  for  cowardice  or  fraud,  publication  thereof 347 ; 

A.  W.  44 

Of  officer,  for  disrespect  toward  President,  Congress,  gov- 
ernors,   etc : 413  ;  A.  W.  62 

Of  officer,  in  time  of  peace,  only  by  sentence  of  court-mar- 
tial   38 (b)  (notes)  ;  A.  W.  118 

Of  officer,  special  court-martial  can  not  adjudge 42 ;  A.  W.  118 

Of  officer  under  A.  W.  95,  no  additional  punishment  allow- 
able        312 

Of  officer  under  R.  S.  1230;  right  to  court-martial 15,  38 (b) 

Of  officer  under  R.  S.  1230;  decision  of  Court  of  Claims.  15 (note) 

Procedure  where  insufficient  votes  to  adjudge  mandatory 309 

(note  2) 
Promotion  of  member  by  dismissal  of  accused,  ground  for 

challenge 121 

Review  by  board  of  review  and  Judge  Advocate  General  of 

cases  involving 399a;A.  W.  50£ 

Voting  on  mandatory  penalty  of 308 

Disobedience  of  orders : 

Failure  to  obey  included  in  willful  disobedience  of  superior 

officer  or  of  noncommissioned  officer 377 

Of  officer,  because  of  ignorance  of  officer's  status,  as  de- 
fense   283 

Of  president  of  court-martial,  not  chargeable  under  A.  W. 

64  but  under  A.  W.  96 89 

Of  superior  officer ;  analysis  and  proof  of  offense ;  definitions 

and  principles 415 ;  A.  W.  64 

Of  superior  officer;  capital  offense  at  all  times 41;  A.  W.  64 

Of  superior  officer;  drunkenness  as  defense 286 

Of  superior  officer;  form  for  specifications App.  6(34) 

Of  warrant  or  noncommissioned  officer ;  analysis  and  proof 

of  offense;  definitions  and  principles 416;  A.  W.  65 

Of  warrant  or  noncommissioned  officer ;  forms  for  speci- 
fications  *. . App.  6 

Disobedience  of  orders  into  arrest  or  confinement : 

Analysis  and  proof  of  offense 419 ;  A.  W.  68 

Forms  for  specifications App.  6(43) 

Principles  and  definitions 419 


INDEX.  725 

[References  are  to  paragraphs,  except   that   the  letter   "p"   indicates  page, 
44  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Disorderly  conduct:  Par. 

Contempt  by  military  person  may  be  charged  as 173 (d) 

When  consisting  of  assault  not  to  be  punished  in  both 

aspects 66 

Who  may  quell  disorders,  etc.,  of  military  persons..  419 ;  A.  W.  68 
Disorders  and  neglects  to  the  prejudice  of  good  order  and  mili- 
tary discipline: 

Definitions  and  principles,  instances,  proof 446,  p.  461 ;  A.  W.  96 

Forms  for  specifications App.  6 

Intent  to  neglect  duty  as  inferable  from  act 280 

Members  of  court-martial  liable  for  inattention,  etc.,  for 

neglect  of  duty ^ 86 

No  negligence  where  no  duty 443,  p.  415 

Disqualification  of  member.     (See  Challenge.) 
Disrespect  toward  President,  etc. : 

Analysis  and  proof  of  offense 413 ;  A.  W.  62 

Definitions  and  principles 413 

Form  for  specification , App.  6(29) 

Disrespect  toward  superior  officer : 

Analysis  and  proof  of  offense 414  ;  A.  W.  63 

Definitions  and  principles 414 

Drunkenness  as  showing  lack  of  knowledge  or  intent 286 

Form  for  specification App.  6(30) 

District : 

Coast  Artillery;  commanding  officer's  duties  where  officer 

arrested  without  charges  preferred 50 

Commanding  officer  may  appoint  special  courts-martial_21 ;  A.  W.  9 
Commanding  officer  may  be  empowered  to  appoint  general 

courts-martial 14 ;  A.  W.  8 

District  attorney,  United  States: 

Action  on  constructive  attempts  of  courts-martial,  etc 173 (c) 

Duty   to   prosecute   recalcitrant   witnesses   before   courts- 
martial  170 ;  A.  W.  23 

Findings  of  inquest,  when  transmitted  to 483  ;  A.  W.  113 

Trial  of  certain  suits  against   military  persons  removed 

from  State  courts 484 ;  A.  W.  117 

District  of  Columbia: 

As  source  of  definitions  for  offenses  under  A.  W.  92  and 

93,  after  Penal  Code 442,  p.  408 

Code  of,  as  guide  for  penitentiary  sentence  and  duration 

of  same *- 40,  338 ;  A.  W.  42,  45 

"Law  of,"  defined 338 (c) 

Division : 

Dismissal  of  officers  in  time  of  war,  confirmation  by  com- 
manding officer  of 378  (b)  ;  A.  W.  48 


726  INDEX. 

[References  are  to  paragraphs,   except   that  th«  letter  **  p "   indicates  page, 
"  A.  W."  Indicates  Artieles  of  War,  and  "  App."  indicates  Appendix.] 

Division — Continued.  Par. 

Mitigation  or  remission  of  sentences,  when  by  commanding 
officer  of 381 ;  A.  W.  50 

Report  to  commanding  general  of  habeas  corpus  in  attach- 
ment proceedings 169  (a) 

Tactical  division  commander  may  appoint  general  courts- 
martial  14  ;  A.  W.  8 

Territorial     division     commander     may     appoint     general 

courts-martial 14;  A.  W.  8 

Documentary  evidence : 

Authenticated  copies  of  documents  at  certain  headquarters, 

admissible 238 

Authentication,  as  fundamental  rule 23Ga 

Authentication  of  writings,  method  of 239 

Before  special  courts,  what  and  when  appended  to  record.  358  (c-f) 
Books  of  account;  use,  conditions,  refreshing  recollection, 

originals 244 

Bulky  reports  not  appended  to  record;  procedure pp.  564(9)  ; 

650(5) 

Court  of  inquiry,  record  of,  when  and  where  admissible 272,  475 

Exceptions  to  hearsay  rule  enumerated 221a 

Expenses  of  obtaining  certified  copies,  how  paid 193 

Four  fundamental  rules  in  use  of,  enumerated 23Ga 

Handwriting  comparison,  statutory  rule  governing  courts- 
martial  240 

Improper,  rejected  by  court  on  own  motion 202a 

Investigation  of  charges,  consideration  upon 76a(3,  8, 10, 11) 

Listed    on    charge    sheets;     appending    of    originals    or 

copies p.  563(4) 

Manner  of  proving  contents  of  writing 237 

Maps,  photographs,  sketches,  etc 245 

Memoranda;  kinds,  use,  proof,  refreshing  recollection 241-243 

Memorandum  of,  forwarded  with  charges 75 

Official  documents  not  appended  to  record,  procedure,  pp.  564(9)  ; 

650(5) 

Official    documents    recording    certain    facts    admissible 238a 

Official  report  not  admissible  because  of  that  fact  alone.  238 (note) 

Originals  197 

Pardon  as  basis  of  plea  in  bar,  how  proved 273 

Procedure  to  obtain;  subpcena  duces  tecum 166 

Procedure  where  original  consists  of  numerous  writings 237, 

2S7  note 

Production  of  official  documents  in  court 237 

Production    of   original,    as    fundamental    rule 236a 

Public    records;    originals    not    required    to    be    produced, 

reason ___      238 


INDEX.  727 

[References  are  to  paragraphs,  except   that   the  letter   "  p "   indicates   page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Documentary  evidence — Continued.  Par. 

Record  of  conviction  necessary  to  impeach  witness  denying 

same 258 

Record  of  general  court-martial,   noted  in: 357(b)  (31,  32) 

Strict   proof    of    undisputed    writings    not    ordinarily    re- 
quired     236b 

Testimonial   status   to  be  given   writing,   as   fundamental 

rule 236u 

War    Department    and   Army   records;    when   copies    ad- 
missible        238 

Witness,  procedure  to  obtain  from  civilian 166 

Double  jeopardy.     (See  Former  jeopardy.) 

Double  questions : 

Defined;    examples 254 (b) 

Draft : 

Officer,  drafted,  eligible  for  membership  on  court-martial    9(c) 

Persons  subject  to  Articles  of  War  under 4(a), 

4(a)(noteg),  A.W.  2(a) 

Drawing  weapon,  etc.,  on  order  into  arrest  or  confinement: 

Analysis  and  proof  of  offenses 419 ;  A.  W.  6-8 

Definitions    and    principles 419 

Forms  for  specifications App.  6(43) 

Dropping  from  rolls : 

Liability   under    A.    W.   94   for    embezzlement   of    certain 

funds  continues  after 444,  p.  459 ;  A.  W.  94 

Of  officer  absent  three  months;  effect,  R.  S.  1230 38(b) 

(note  3)  ;  A.  W.I  18 

Drunk  on  duty : 

Analysis  and  proof  of  offense 435 ;  A.  W.  So 

Definitions  and  principles 435 

Drunkenness,  a  lesser  included  offense 377 

Form  for  specification App.  6(76) 

Intent  inferable  from  act 280 

"On  duty"  defined,  under  A.  W.  85 435 

Drunk  on  post : 

Analysis  and  proof  of  offense 436;  A.W.  86 

Definitions    and    principles 435, 436 

Form  for  specification App.  6(77) 

No  statutory  intent  described  in  A.  W.  86  nor  to  be  alleged—      281 

Drunkenness : 

As  a  defense;  discussed,  examples 285 

As  a  defense  in  military  cases 286,435 

As  violation  of  A.  W.  95 445 

As  violation  of  A.  W.  96 446,  p.  462 

Being  drunk  an  Included  offense  under  drunkenness  on  duty      377 

"  Drunk  "  defined 304 

Manner  of  proof;  direct  question;  describing  conduct 287 


728  INDEX. 

[References  are   to   paragraphs,   except   tliat.  the   letter   "  p "   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Drunkenness — Continued.  Par. 

May  result  from  use  of  intoxicating  drugs 286 

Substitutes  for  word  "  drunk  "  not  to  be  used  iu  charges  or 

findings 74(b) ,  304 

Duelling : 

Being  concerned  in  or  conniving  at  duel ;  offense  described, 

penalty,  forms 441;  A.  W.  91;  App.  6(91) 

Failing  to  report  knowledge  of  challenge ;  offense  described, 

penalty,  forms 411;  A.  W.91;  App.  6  (91) 

Fighting  or  promoting  a  duel;  offense  described,  penalty, 

forms 441 ;  A.  W.  91 ;  App.  6(87) 

Duty: 

Acts   in   performance   of,    as   justification    or    excuse   for 

homicide 442,  p.  408 

Drunk  on.     (See  Drunk  on  duty.) 

Restoration  to,  as  condonation  of  desertion 151 

Restoration  to,  during  suspension 392 ;  A.  W.  52 

Suspension  from,  effect 316 

Duty,  neglect  of.     (See  Disorders  and  neglects,  etc.) 
Dying  declaration: 

Exception  to  hearsay  rule  in  murder  and  manslaughter; 

discussed 221a  ( 1 ) ,  222 

Election,  motion  to  require  not  permitted J. 157 

Embezzlement : 

Analysis  and  proof ;  penalty 443,  pp.  413,  430 ;  A.  W.  93 

By  former  officer  of  funds  of  company,  etc.,  or  of  enlisted 

men ;  limitations  and  proof 444,  p.  459 ;  A.  W.  94 

Definitions  and  principles 443,  p.  413 

Forms  for  specifications App.  6(102, 103) 

Larceny  distinguished 443,  p.  431 

Limitation  of  three  years 149(2) 

Of  military  property  ;  defined,  proof 444,  p.  457 ;  A.  W.  94 

Presumption  from  possession  of  embezzled  articles 278 

Enemy : 

Attempting  to  relieve;  analysis  and  proof  of  offense,  pen- 
alty   431 ;  A.  W.  81 

Giving  intelligence  to;  analysis  and  proof  of  offense,  pen- 
alty  431 ;  A.  W.  81 

Harboring  or  protecting ;  analysis  and  proof  of  offense,  pen- 
alty  431 ;  A.  W.  81 

Military  government  exercised  over  territory  of 2 (a) 

Misbehavior  before ;  offense  defined,  proof,  penalty 425,  p.  378 ; 

A.  W.  75 

Relieving ;  analysis  and  proof  of  offense,  penalty 431 ;  A.  W.  81 

Relieving,  corresponding  with,  etc.,  or  so  attempting,  capital 
offense  in  time  of  war 41 ;  A.  W.  81 


INDEX.  729 

[References  are  to  paragraphs,  except   that  the  letter   "  p "   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Engineer  train,  when  a  detachment  for  disciplinary  purposes 28 

Enlisted  men  (see  also  more  specific  titles)  : 

Funds  of,  embezzlement  by  former  officer  an  offense__  444,  p.  459 ; 

A.  W.  94 

Included  under  word  "  soldier  " 4(notes  1,  2)  ;  A.  W.  1  (b) 

Reporter  for  court-martial,  etc.,  detail  of  soldier  as 115 

Reporter  for  court  of  inquiry 457 

Retired,  subject  to  military  law 4 (a)  ;  A.  W.2 

Sentences  which  may  be  imposed  on  soldiers  enumerated 311 

Soldier  holding  certificate  of  eligibility  to  promotion  may 

be  sentenced  to  loss  of  privileges 311 

Soldier  holding  certificate  of  eligibility  to  promotion  not 

subject  to  summary  court-martial 43 ;  A.  W.  14 

Soldiers  of  Regular  Army  subject  to  Articles  of  War 4 (a)  ; 

A.  W.2  (a) 
Enlisted  Reserve  Corps  when  on  active  duty  subject  to  Articles 

of  War 4(a)(notef) 

Enlistment : 

After  dishonorable  discharge  does  not  revive  prior  offenses.  38 (e) 
Fraudulent.     (See  Fraudulent  enlistment.) 

Illegal,  how  pleaded 152 (b) 

Original  enlistment  paper  admissible  without  calling  offi- 
cer making 238a 

Time  lost  to  be  made  good 38 (e)  (note)  ;  A.  W.  107 

Trial  after  expiration  of  term  for  offenses  during 38 (e)  (note) 

Trial  after  expiration  of  term  for  offenses  while  making 

good  time 38 (e)  (note)  ;  A.  W.  107 

Unlawful  by  officer — 

Analysis  and  proof  of  offense 406 

Definitions  and  principles 406 ;  A.  W.  55 

Forms  for  specifications App.  6(5) 

Must  be  "  knowingly  "  made 281 

Entry  into  service  as  subjecting  entrant  to  Articles  of  War —  4 (a)  ; 

A.  W.2  (a) 

Equivalent  punishments,   table   of 349 

Errors,  list  of  common % App.  27 

Errors  not  invalidating  trial 376a  ;  A.  W.  37 

Escape : 

Acts  and  statements  of  conspirator  in  furtherance  of 224 

Does  not  divest  court,  during  trial,  of  jurisdiction 36 

From  arrest  or  confinement.     (See  Arrest;  Confinement.) 
Suffering    or    permitting.     (See    Suffering   a    prisoner    to 

escape. ) 
Espionage.     (See  Spying.) 


730  INDEX. 

[References  are  to  paragraphs,  except   that  the  letter   "p"   indicates   page. 
"A.  W."  Indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Evidence :  Par. 

(In  connection  urith  a  particular  subject,  see  the  specific 
title.) 

Admissibility ;  rulings  by  law  member 89a  ;  A.  W.  31 

Admissibility ;  rulings  by  president  of  court 89 ;  A.  W.  31 

Aider  of  defective  specification 158a 

Analysis  by  trial  judge  advocate  and  counsel 196 

A.  W.  28  not  a  punitive  article  but  prescribes  rule  of_  74 (n)  ;  284 (a) 

Circumstantial,  denned  and  explained 202(3),  203 

Circumstantial,   illustration  of  difference  between  admis- 
sible and  inadmissible 204 

Corroboration.     (See  Corroboration. ) 

Documentary  evidence.     (See  Documentary  evidence.) 

Duties,  in  general,  of  court  in  consideration  of 197 

Findings  preclude  taking  of  further 297 

General    remarks   concerning 194, 195 

Identification  of  accused.     (See  Identification  of  accused.) 

Improper,  should  be  rejected  by  court  on  own  motion. 202a 

Indirect,  defined  and  explained 202(3) 

Irrelevant,  inadmissible ;  admitting  conditionally 202(2) 

Material  to  the  issues;  when  not  material 202(1) 

Objections,  reasons  for,  to  be  stated 250 

Ortter  of  proof  in  presentation  of. 196 

Pleading,  in  specifications,  improper;  explained;  effect 74 (d) 

Record  to  show  whether  accused  off ered  testimony,  etc_  357  (b)  (34) 

Relevant  to  the  issues;  when  not  relevant 202(1) 

Res  gestae.     (See  Res  gestae.) 

Rules  of,  applicable  irrespective  of  rank 200 

Rules  of,  for  courts-martial,  where  found 198, 199 

Statement  of  accused  is  not 290,  292 

Suppression  of,  as  creating  presumption  of  guilt 278 

Taking  after  plea  of  guilty 154 (c) 

Testimonial;   defined,   examples 207 

Testimonial  knowledge  discussed 220 

Testimonial,  why  classed  by  itself 202(4) 

Use  of  texts  and  State  decisions 199 

Variance,  procedure  in  case  showing 158b 

Witnesses.     (See  Witnesses.) 

Exceptions  and  substitutions: 

Findings  varying  from  specifications  as  to  date  or  place 74(g) 

Guilty  of  lesser  included  offense , 298 

Guilty  with;  power  of  court-martial  to  find- 299 

Required  when  evidence  improperly  pleaded 74 (d) 

Substitution  of  general  for  specific  article  in  the  charge 300 

Excessive  sentences,  part  approval  of 386 

Exclamations.     (See  Res  gestae.) 


INDEX.  731 

[References  are  to  paragraphs,   except   tbat  the  letter  "  p  •»   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Execution  of  death  sentence.     (See  also  Death  sentence.)  par. 

Court-martial  not  concerned  with  time  or  place 346 

In  presence  of  troops  as  example 346 

Manner  of  execution  stated 346 

New  date  fbred  if  date  passed 346 

Reviewing  or  confirming  authority  fixes  time  and  place 346 

Execution  of  sentence  as  affected  by  review  of  board  of  review 
and  Judge  Advocate  General 399a  ;  A.  W.  50} 

Executive  order : 

As  to  maximum  punishments,  etc. ;  when  effective 349 

Maximum  punishments  named  therein  do  not  preclude  less 

punishments  of  different  kind 309 (note  3) 

Promulgation  of  Manual  for  Courts-Martial xxl 

Reference  to,  to  determine  what  is  legal  punishment 309 

Expediting  trials : 

Duty  of;  penalty  for  unnecessary  delay 103, 103a,  420;  A.  W.  70 

Expert: 

Capacity  to  testify  as,  discussed 218' 

Employment  of,  as  witness 102 

Extenuation : 

Drunkenness  as  matter  of 285 

Ignorance  of  articles  of  war  as 282 

Statement  of  accused  as  matter  of 290 

Statement  of  accused  failing  to  testify  at  trial 215 

Statement  of  accused  on  investigation 76a 

Extra-duty  pay,  forfeiture  of 324 

Extra  fatigue : 

As  disciplinary  punishment ;  one  week  limit 333;  A.  W.  104 

Failure  to  obey  standing  orders : 

Distinguished  from  willful  disobedience  of  superior  officer.      415 

Failure  to  plead 155 ;  A.  W.  21 

Failure  to  render  report  of  prisoners  by  commander  of  a  guard : 

Analysis  and  proof  of  offense 55 (note),  422 ;  A.  W.  71 

Definitions  and  principles 422 

Form  for  specification App.  6(46) 

False  alarms,  occasioning 425,  p.  381 ;  A.  W.  75 

False  claims  against  United  States: 

Agreement  or  conspiracy ;  defined,  proof 444,  p.  452 

False  oath  in  connection  with  claims ;  proof.  444,  p.  454  ;  A.  W.  94 
Forgery,  etc.,  of  signature  in  connection  with  claims,  proof, 

444,  p.  454 ;  A.  W.  94 

Liability  to  trial  by  court-martial  after  discharge  or  dis- 
missal—  38(a)  ;  A.  W.  94 

Limitation  of  three  years 149(2) 

Making  or  causing  to  be  made ;  defined,  proof.  444,  p.  450 ;  A.  W.  94 


732  INDEX. 

[References  are  to   paragraphs,   except   that   the  letter   "  p "   Indicates   page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

False  claims  against  United  States — Continued.  Par. 
Making,  using,  etc.,  false  writing  in  connection  with;  de- 
fined, proof  __r 444,  p.  453 ;  A.  W.  94 

Offenses  under  A.  W.  94  enumerated  and  classified 444,  p.  448 

Presenting  or  causing  to  be  presented  for  approval  or  pay- 
ment ;  defined,  proof 444,  p.  451 ;  A.  W.  94 

False  muster: 

Analysis  and  proof  of  offense 407 ;  A.  W.  56 

Definitions  and  principles 407 

Forms  for  specifications App.  6(6-12) 

Must  be  made  "  knowingly  " 281 

False  returns : 

Analysis  and  proof  of  offense 408 ;  A.  W.  57 

Definitions  and  principles 408 

Forms  for   specifications App.  6(13-14) 

False  swearing  (see  also  Perjury) : 

Defined  and  distinguished  from  perjury 446,  p.  463 

False  writing.     (See  Forgery.) 

Falsification  of  accounts : 

Evidence  of  similar  occurrence,  example  of 206(4) 

Family  history,  statements  about: 

Exception  to  hearsay  rule;  when  applicable 221a(3) 

Federal  judicial  system,  courts-martial  not  part  of 33,  33a 

Fees  of  witnesses.     (See  Witnesses.) 

Felonious  assault.     (See  Assault,  and  references  there  given.) 

Field  bakery,  when  a  detachment  for  disciplinary  purposes 28 

Field  clerks  (Army  and  Quartermaster  Corps)  : 

A.  W.  55,  56,  67,  and  75  not  applicable  to ;  A.  W.  96  proper, 

for  such  offenses 406,  407,  418,  425,  p.  380 

Compensation  as  reporters  of  courts-martial,  etc.,  not  al- 
lowed   113 (f) 

Excepted  from  jurisdiction  of  special  and  summary  courts- 
martial  by  G.  O.  71,  W.  D.,  1920 p.  656 

False  muster,  etc. ;  A.  W.  56  not  applicable  to 407 

Misbehavior,  etc.,  before  enemy ;  A.  W.  75  not  applicable  to_      425 
Mutiny  or  sedition,  not  suppressing,  etc.,  under  A.  W.  96  and 

not  A.  W.  67 418  (note) 

Officers,  but  not  commissioned;  use  of  term 4(note2) 

Power  to  quell  frays,  disorders,  etc. ;  penalty 419 ;  A.  W.  68 

Previous  conviction ;  3-year  limitation 

Subject  to  Articles  of  War 4 (a)  ;  A.  W.  2 (a) 

Summary  court-martial,  not  subject  to 43 ;  A.  W.  14 

Unlawful  enlistment,  etc. ;  A.  W.  55  not  applicable  to 406 

What  sentences  legal  for 310a 

Field  signal  battalion,  when  a  detachment  for  disciplinary  pur- 
poses         28 


INDEX.  733 

[References  are   to   paragraphs,   except   that   the   letter   "  p "   indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Fifth  Amendment  (see  also  Self-crimination) :  Par. 

Accused  can  not  be  required  to  admit  his  statement—  225 (note  1) 

Applies  to  courts-martial,  both  accused  and  witnesses' 233 

As  a  source  of  military  jurisdiction 1 

Compulsory  submission  to  physical  examination  does  not 

violate 236,  236(a) 

Files,  loss  of: 

How  accomplished 313 

Legal  sentence  for  officers 310 

What  approval  necessary,  President  need  not  confirm  but 

alone  can  restore 390 ;  A.  W.  50 

Finance  Department: 

Desertion  disapproved,  grounds  stated  for  benefit  of 388 

Nearest  finance  officer  to  tender  witness  fees  and  mileage 

172, 177 (c) 
Payment  of  all  necessary  expenses  of  courts-martial,  etc., 

by 193 

Payment  of  interpreters  on  certified  vouchers 119 

Payment  of  subpoena  fees,  appropriation  for 191 

Transmittal  of  effects  and  money  of  deceased  person  to 482 ; 

A.  W.  112 
Findings: 

Approval,  powers  incident  to  power  of 377 

At  close  of  prosecution's  case 158c 

Communication  to  reporter  or  clerk  improper ;  legality  un- 
affected  , 305 

Court  to  be  closed  for 91 ;  A.  W.  19 

Evidence  can  not  be  taken  after 297 

General  principles  applicable  to 297 

Guilty  of  but  one  specification  supports  like  finding  upon 

charge 297 

Guilty  of  general  and  not  of  specific  article 300 

Joint  charges;  form  where  both  conviction  and  acquittal 301 

Lesser  included  offenses 377 (a) 

Of  courts-martial 294-305 

Of  courts  of  inquiry 461,469 

Of  no  criminality,  equivalent  to  acquittal 303 

Of  not  guilty  not  to  be  approved  or  disapproved  but  merely 

promulgated  in  orders 372 (b) 

On  summary  court  record 363 

Reasons  for,  may  be  spread  upon  record 302 

Reconsideration  where  insufficient  votes  to  sustain  manda- 
tory sentence 309  (note  2) 

Record  to  show  certain  facts  concerning 357b(40) 

Recording  by  reporter ;  communication  to  him 305 

Return  for  reconsideration,  when  prohibited 352 ;  A.  W.  40 

21358°— 20 47 


734  INDEX. 

[References  are  to  paragraphs,  except   that  ths  letter   "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Findings — Continued.  Par. 

Voting.     (See  Voting.) 

With  exceptions  and  substitutions 299 

Fine: 

Accrues  to  United  States  and  not  to  an  individual 317 

Denned ;  alternative  of  imprisonment 317 

Legal  sentence  for  officers 310 

Finger  prints : 

Conditions  under  which  admissible 245 

Original  admissible  without  calling  officer  making  card 238a 

Flight,  presumption  of  fact  arising  from 278 

Flogging  prohibited 344 ;  A.  W.  41 

Force.     (In  rape,  see  Rape.     In  robbery,  Robbery.    In  sodomy, 

Sodomy. ) 
Forcing  a  safeguard: 

Analysis  and  proof  of  offense 428 ;  A.  W.  78 

Capital  offense  in  time  of  war 41 ;  A.  W.  78 

Definitions  and  principles 428 

Form  for  specification App.  6(63) 

Foreign  country: 

Powers  of  notary  public  or  consuls  to  certain  officers  where 

Army  is  serving  in 138 (b)  ;  A.  W.  114 

Procedure  to  obtain  deposition  in 182 

Forfeiture : 
Deposits — 

Court-martial  can  not  adjudge  forfeiture 326 

Desertion  forfeits  principal  and  interest 326 

Pay  and  allowances — 

Accrues  to  United  States  and  not  to  an  individual 317 

Allowances,   without   pay,   not   customary 324 

Class  A  allotments  not  forfeitable  by  court-martial 311 

Class  B  allotments  not  forfeitable  by  court-martial 311 

Deposits  of  soldier  not  forfeitable 326 

Executive  order  limiting  amount p.  283 

Extra-duty  pay,  when  not  forfeited 324 

Fine  distinguished 317 

In  whole  or  part,  legal  sentence  for  soldiers 311 

In  whole  or  part,  legal  sentence  for  officers 310 

Mitigation  to  detention  of  .pay 382 

No  forfeiture  by  implication ;  express  terms 324 

Not  within  commanding  officer's  disciplinary  powers; 

exception 333  ;  A.  W.  104 

Officer's  pay  as  disciplinary  punishment,  when  forfeit- 
able 333  ;  A.  W.  104 

Pay  does  not  carry  allowances 324 

Power    of    remission    or    mitigation    extends  to    un- 
collected 381 ;  A.  W.  50 


INDEX.  735 

[References  are  to  paragraphs,  except   that  the  letter   "  p "   indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

forfeiture — Continued. 

Pay  and  allowances — Continued.  Par. 

Special  court  limited  to  two-thirds  per  month  for  not 

over  six  months . 42 ;  A.  W.  13 

Summary  court  limited  to  two-thirds  of  one  month's 

pay 44  ;  A.  W.  14 

Forgery : 

Analysis  and  proof;  penalty 443,  p.  435 ;  A.  W.  93 

.Definitions  and  principles 443,  p.  435 

Falsely  altering  a  writing ;  proof 443,  p.  438 

Falsely  making  a  writing ;  proof 443,  p.  437 

Forms  for  specifications App.  6(105, 106) 

In  claims  against  United  States 444,  p.  454 ;  A.  W.  94 

Uttering  a  paper  falsely  made  or  falsely  altered ;  attempt 

to  do  so ;  proof 443,  p.  438 

Former  jeopardy: 

Action  of  other  than  Federal  court  no  bar  to  trial  by  court- 
martial  274 

Advice  to  accused  as  to  right  to  plead,  in  record 149(3)  (h) 

Defense  must  be  asserted  to  take  advantage  of  it 149(3)  (g) 

Evidence  of  former  trial  by  military  or  civil  court,  how 

offered . 274 

Former  punishment,  when  having  another  trial 152 (a) 

Fraudulent  enlistment;  example 149(3)  (f) 

Nolle  prosequi  is  not  a  pardon  or  acquittal 158 

Privilege  against  self-crimination  as  ceasing 233 (a) 

Punishment  as  disciplinary  measure,  in  bar  or  mitigation 333 ; 

A.W.  104 
Rehearing  not  allowed   on   offenses   of  which   found   not 

guilty 377a ;  A.  W.  50* 

Same  acts,  when  trial  on  is  or  is  not  barred 149(3)  (d) 

Second  trial  where  offense  same  but  charged  under  different 

description  or  article 149(3)  (e) 

Trial  in  either  military  or  civil  courts  of  certain  territorial 

possessions 149(3)  (d) 

"Tried"  denned;  cases  where  person  not  "tried" 149(3)  (c) 

Former  testimony   (see  also  Depositions)  : 

Before  court  of  inquiry  admissible  by  A.  W.  27  if  accused 

consents  ;  exceptions 272,  475 

Before  court  of  inquiry  ;  same  rules  applicable  as  where  tes- 
timony of  other  courts  offered 272 

On  rehearing,  when  admissible 377a 

Former  trial: 

As  double  jeopardy;  instances  where  no  defense 149(3)  (c) 

Membership  on,  as  ground  for  challenge 121 


736  INDEX. 

{References  are   to   paragraphs,   except   that   the  letter  "  p "   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Forms :  Par. 

Action  on  sentence  by  reviewing  authority App.  15,  p.  637 

Brief  on  return  to  habeas  corpus  out  of  United  States  court 

in  minor's  enlistment  case App.  22,  p.  661 

Charges  against  general  prisoner 74j 

Charges  and  specifications  under  Articles  of  War 74 (f) ; 

App.  6,  p.  565 

Charge  sheet App.  5,  p.  560 

Depositions  taken  upon  interrogatories App.  17,  p.  644 

Explanation  to  accused  of  his  rights  as  witness App.  9,  p.  612 

Explanation  to  accused  of  plea  of  guilty App.  9,  p.  611 

Explanation  to  accused  to  right  to  plead  statute  of  limita- 
tions   App.  9,  p.  610 

For  offenses,  use  not  mandatory 74(f)  ;  App.  6,  p.  565 

General  court-martial  order App.  16A,  p.  641 

General  court-martial,  order  appointing ; App.  3,  p.  558 

Habeas  corpus  out  of  State  court,  for  prisoner,  return  to 

writ App.  22D,  p.  660 

Habeas  corpus  out  of  State  court,  for  witness,  return  to 

writ App.  22B,  p.  658 

Habeas  corpus  out  of  Unifed  States  court,  for  prisoner,  re- 
turn to  writ App.  22C,  p.  658 

Habeas  corpus  out  of  United  States  court,  for  witness,  re- 
turn to  writ App.  22A,  p.  657 

Inquest,  report  of App.  26,  p.  678 

Interrogatories  and  depositions App.  17,  p.  644 

Law  member,  for  use  of App.  9,  p.  609 

Pleading  change  of  rank 74k 

Pleading  guilty  to  absence  without  leave  on  charge  of  de- 
sertion        298 

President  of  court-martial,  for  use  of App.  9,  p.  609 

Record  of  trial  by  general  court-martial  and  revision  pro- 
ceedings  App.  10,  p.  616 

Record  of  trial  by  special  court-martial App.  11,  p.  629 

Record  of  trial  by  summary  court-martial App.  12,  p.  633 

Report  of  inquest App.  26,  p.  678 

Reviewing  authority,  orders  of,  vacating  suspension  of  sen- 
tence  App.  15  B,  p.  640 

Reviewing  authority,  original  action  by App.  15A,  p.  637 

Revision  of  record  of  general  court-martial App.  10,  p.  616 

Ruling  in  open  court App.  9,  p.  609 

Sentences  by   court-martial App.  13,  p.  634 

Special  court-martial  order App.  16B,  p.  642 

Special  court-martial,  order  appointing App.  4,  p.  559 

Subpoena  for  civilian  witness App.  19,  p.  651 

Suspension  of  sentence,  orders  vacating App.  15B,  p.  640 

Synopses  of  convictions  by  court-martial App.  7,  p.  592 


INDEX.  737 

[References  are  to   paragraphs,   except   that   the  letter   "  p "   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Forms — Continued.  Par. 
Voucher  for  compensation  of  civilian  witness  in  Govern- 
ment employ App.  24,  p.  C70 

Voucher  for  compensation  of  civilian  witness  not  in  Govern- 
ment employ App.  23,  p.  667 

Voucher  for  personal  services  of  reporter App.  25,  p.  674 

Warrant  of  attachment App.  20,  p.  655 

Fort : 

Commanding     officer     may     appoint     special     courts-mar- 
tial   21 ;  A.  W.  9 

Commanding    officer    may    appoint    summary    courts-mar- 
tial  25  ;  A.  W.  10 

Fraud : 

Discharge  obtained  by;  cancellation,  arrest  and  court-mar- 
tial   38(d) 

Discharge  obtained  by ;  serving  out  enlistment  on  cancella- 
tion    38(d) 

Drunkenness  as  showing  lack  of  knowledge  or  intent 286 

Publication  of  dismissal  of  officer  for,  in  newspapers ;  non- 
association  with  him 347;  A.  W.  44 

Fraud    against    United    States.     (See    False    claims    against    United 

States.) 
Fraudulent  enlistment  (see  also  Enlistment)  : 

Analysis  and  proof  of  offense 405  ;  A.  W.  54 

Definitions  and  principles 405 

Desertion ;  A.  W.  28,  a  rule  of  evidence  and  not  a  punitive 

article 74 (n) 

Desertion,  joinder  with  charge  of 74 (n) 

Desertion,  no  defense  to  charge  of 74 (n) 

Double  jeopardy,  example  of,  in  trial  for 149 (3)  (f) 

Forms  for  specifications App.  6(1-4) 

Uncorroborated  confession  insufficient 70 

Willful  intent  must  be  alleged  and  proved  under  A.  W.  54__      281 
Fray: 

Defined 419 

Power    to    quell,    persons    enumerated,    penalty    for    dis- 
obedience    419;   A.W.68 

Freedom  in  conducting  case 100, 107e,  291 

Funds : 

Embezzlement   of  enlisted  man's,   by   officer;   liable  after 

discharge : —  444,  p.  459 ;  A.  W.  94 

Embezzlement  of  ration  savings,  post  exchange,  company, 

etc.,  by  officer ;  liable  after  discharge 444,  p.  459 ;  A.  W.  94 

Power  of  court-martial  to  correct  averment  as  to 299 


738  INDEX. 

[References  are   to   paragraphs,   except  that   the   letter  "  p "    indicates   page, 
"  A.  w."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

General  article:  Par. 

Attempt,  when  conviction  of,  properly  under 300 (note  2) 

Members  of  Army  Nurse  Corps,  warrant  officers  and  field 
clerks  not  included  under  A.  W.  55,  56,  67,  but  for  like 
offense  liable  under 406,  407,  418 (note) 

Offenses  under,  defined,  instances,  proof 446 ;  A.  W.  96 

Specific  article  to  be  used  for  offense  specifically  pro- 
vided for 75  fe) 

Substitution  of,  by  court,  for  article  named  in  charges 300 

General  court-martial  orders: 

Form  for App.  16  A,  p.  641 

Judicial  notice 289 

On  rehearing;   contents 377a 

Publication,  contents,  copies,  etc 400 ;  App.16 

Staff  judge  advocate,  when  to  secure  data  for 399a(notel) 

General  courts-martial  (see  also  Courts-martial  and  generally 
throughout  index)  : 

Adjournment,  record  to  show 357 (b)  (52) 

Advice  in  open  court — 

Of  defense  counsel 107d 

Of  trial  judge  advocate 09 

Appointing  order — 

Form App.  3 

Reading  to  accused  noted  in  record -357 (to)  (16) 

Appointment — 

By  President  of  United  States 14, 15 ;  A.  W.  8 

By  Superintendent  of  Military  Academy,  but  not  for 

officers 16 ;    A.  W.  8 

Duration  of  power  to  appoint 18 

Each  order  affecting  in  record 357(b) (6) 

Form  for  order  of App.3 

Who  may  appoint 14 ;  A.  W.  8 

Challenge.     (See  Challenge.) 

Charges.     (See  Charges.) 

Closed  sessions  when  required ;  when  not  required 91 

Composition,  not  less  than  five  officers 7 (a)  ;  A.  W.  5 

Conduct  of  case — 

Freedom  in 100, 107e,  291 

Powers  of  trial  judge  advocate  and  court 100 

Death  sentence.     (See  Death  sentence.) 

Decorum,  observation  of;  when  standing  required 86 

Defense  counsel.     (See  Defense  counsel.) 

Judicial  notice.     (See  Judicial  notice.) 

Jurisdiction — 

Concurrent   with   military   commissions  under   A.   W. 
12,  15,  80-82 3(b)(notel) 


ISTDEX.  739 

[B£fer«nces  are  to  paragraphs,   except  that   the  letter  "  p "   Indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix  ] 

General  courts-martial — Continued. 

Jurisdiction — Continued.  Par. 

Exclusive  power  to  impose  dishonorable  discharge 320 ; 

A.  W.  108 

Failure  of  record  to  show,  ground  for  disapproval 146 

Over  pei-sons  and  offenses,  enumerated 39;  A.  W.  12 

Persons  subject  by  law  of  war  to  trial  by  military 

tribunals 13  ( b ) 

Procedure  on  second  trial  when  first  trial  vacated  be- 
cause of  record  not  showing 146 (note 2) 

Waiver  of  objection  never  confers 146 

Law  member.     (See  Law  member.) 
Meetings — 

Fact  and  hour  in  record 357 (b)  (4) 

Place  and  date  in  record 357 (b)  (4) 

Times  and  places 81 

Members — 

Absence  ;  duty,  noted  in  record,  reason 85 

Absence,  procedure  upon  return  after 93 

Accuser  or  witness  for  prosecution  ineligible 6 (a), 

129 ;  A.  W.  8 
As  witness  for  prosecution,  for  defense  or  called  by 

court 131 

Authentication  of  records,  when  by_  354,  357 (b)  (54) ;  A.  W.  33 
Challenge.     (See  Challenge.) 

Challenge  or  in  eligibility  noted  in  record 357  (b)  (13) 

Change  in  membership,  rank,  during  trial ;  effect 93 

Closed  session,  right  to  require 91 ;  A.  W.  31 

Duty  with  command  during  adjournment 81 

Informing  court  as  to  member  being  accuser  or  witness.      129 

Eligibility 6,  9,  11,  129-131 ;  A.  W.  4,  8 

Informing  court  as  to  member  being  accuser  or  witness-      129 
Law  member.     (See  Law  member.) 

No  maximum  limitation 7 (a)  (note  2)  ;  A.  W.  5 

JsTot  less  than  five;  rules  in  determining  number 7 (a) 

(notel)  ;  A.  W.  5 

Oath;  form,  administration,  when  taken 132 (a) 

Oath  to  test  competency ;  form 137 

Organization  completed  for  each  case  separately 142, 143 

Presence  or  absence  at  opening  and  after  recess,  in 

record 357b(37,  38) 

Record  to  note  names,  presence,  etc 357 (b)  (7-9) 

Taking  of  oath  noted  in  record 357 (b)  (17) 

Taking    seat    after    absence;    advisability,    procedure, 

effect 93 

Uniform 82 

Usually  near  prescribed  minimum ;  odd  aumber.  7 (a)  (note  1) 


740  INDEX. 

[References  are   to  paragraphs,   except  that   the  letter  "p"   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

General  courts-martial — Continued.  Par. 

Offenses  punishable  by 39 ;  A.  W.  12 

Order  of  appointment,  contents 81 

Order  of  reference — 

Appended  to  record  of  trial 357 (b)  (56) 

Examination    for    errors 97 

Forwarded  by  appointing  authority 367 (a) 

Organization  completed  for  each  case  separately 142, 143 

Persons  triable  by 39 ;  A.  W.  12 

Power  of  appointment — 

Officers  who  may  appoint  enumerated: 14 ;  A.  W.  8 

President's  power  as  Commander  in  Chief 15 

President's  power  under  A.  W.  8 14  ;  A.  W.  8 

President's  power  under  R.  S.  1230 15 

President  of  general  court-martial — 

Acts  not  by  appointment  but  by  seniority 89 

Administers  oath  to  trial  judge  advocate  and  assistants 

as  such  or  as  witnesses 133 

Advice  to  accused,  as  to  limitations,  in  record 357(b)  (21) 

Advice  to  accused  as  to  pleading  limitations 149 (3). (b) 

Advice  to  accused,  ignorant  of  rights,  in  record 357b(26) 

Authentication  of  records ;  absence,  etc 354, 

357 (b)  (54)  ;  A.  W.  33 

Duty  to  preserve  decorum  ;  admonitions 86 

Examination  of  order  of  reference  for  trial 97 

Explanation  to  accused  as  to  right  to  testify 215, 

357(b)(34)  ;App.9 

Explanation  to  accused  on  plea  of  guilty 154 (d), 

357 (b)  (22,  23) 

Explanation  to  accused  on  plea  of  guilty;  record 154 (d) 

Form  for  use  of App.  9 

Informs  ignorant  witness  as  to  self-crimination 234 

Insanity,  etc.,   of  accused   raised   during   trial 219 (b)  (f) 

Oaths    for    administrative    purposes 138 (b)  ;  A.  W.  114 

Powers  and  duties  enumerated  and  discussed 89 

Rulings  on  interlocutory  questions,  except  challenges, 
in  absence  of  law  member 89 ;  A.  W.  31 

Punishment.     (See  also  Punishment)  — 

Limits;    when    mandatory,    discretionary 40 

Penitentiary  sentence,  when  may  be  imposed-  40 ;  A  W.  42,  45 

Quorum — 

Addition  of  members  to  secure ;  procedure.  7(a),7(a)  (note  3) 

Addition  of  members  to  secure,  when  permitted 7 (a) 

Powers  of  less  than  five  members 7 (a) 

Records.     (See  Records  of  courts-martial.) 
Reporter.     (See  Reporter.) 


INDEX.  741 

[References  are  to  paragraphs,   except  tbat  the  letter  "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

General  courts-martial — Continued.  Par. 

Revision  of  proceedings 352,  364 ;  App.  6 

Rulings — 

Interlocutory  questions 89,  89a;  A.  W.  31 

Reliance  on  law  member  may  be  stated  in  record 89a(note  1) 

Seating — 

According  to  rank;  when  changed,  according  to  new 

rank    12 (a),  83, 93 

Of  trial  judge  advocate,  accused,  counsel,  reporter 83 

Sentence.     (See  Sentence.) 

Sessions,  record  to  show  opening,  sessions,  closing,  etc., 357 (b) 

(7-9,36-38,52) 

Trial  judge  advocate.     (See  Trial  judge  advocate.) 
Voting.     (See  Voting.) 

What  offenses  should  be  tried  by 78 

General  hospital : 

Inmates,  at  Fort  Bayard,  N.  Mex.,  subject  to  Articles  of 

War 4(f)  (note 2) 

Inmates,    at    Hot    Springs,    Ark.,    subject    to    Articles    of 

War 4(f)  (note 2) 

General  issue.     (See  Pleas.) 

General  officer,  confirmation  of  sentence  of 378 (a)  ;  A.  W.  348 

General  orders : 

As  source  of  military  law 2(d) 

Judicial  notice  of  certain  kinds  enumerated 289 

General  prisoner.     (See  Prisoner.) 

Gentleman,  conduct  unbecoming  an  officer  and.     (See  Conduct 

unbecoming  an  officer  and  gentleman.) 

Gestures,  reproachful  or  provoking.     (See  Reproachful  or  pro- 
voking speeches  or  gestures.) 

Gist  of  offense  read  to  court  after  pleading 197,  357 (b)  (24) 

Giving  intelligence  to  enemy.     (See  Enemy.) 
Government  employee  as  witness.     (See  Witnesses.) 
Government,  frauds  against.     (See  False  claims  against  United 
States.) 

Governor  of  State,  etc.,  disrespect  toward ;  penalty 413 ;  A.  W.  62 

Grade,  reduction  to  seventh,  of  enlisted  man,  legal  sentence —      311 

Grand  jury   deliberations  privileged 227 

Guilty.     (See  Conviction;  Pleas.) 
Habeas  corpus : 

Brief  with  return  to  writ  out  of  Federal  court  to  obtain 

discharge  of  minor App.  22,  p.  661 

Forms  for  returns  and  briefs  in App.  22,  p.  657 

From  Federal  court  to  review  attachment  of  witness..  169 (a) 

From   State  court  to  review  attachment  of  witness 169 (b) 

Philippine  Islands,  procedure  on  writ  in 480 


INDEX. 

[RefertMices  are   to   paragraphs,    except  that    the   letter   "p"    indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App,"  indicates  Appendix.] 

Habeas  corpus — Continued.  Par. 

Powers  of  Federal  courts  over  courts-martial,  in  general 33, 33a 

Purpose  of  writ,  to  determine  legality  of  restraint 476 

Review  of  plea  to  the  jurisdiction  by 146 

State   courts,    return   to    writ;    enlisted    man    or    general 

prisoner;  form 478(b)  ;  App.  22,  p.  660 

State  courts,  return  to  writ ;   witness  held  under   attach- 
ment  478 (a );  App.  22,  p.  658 

State  courts  without  authority  where  restraint  by  United 

States   477 

To  review  proceedings  of  court-martial 33 

United  States  Court ;  return  to  writ,  prompt  obedience,  pro- 
cedure       479 

Where   restraint   by  United   States,    State   court   without 

authority 477 

Handwriting,  statutory  rule  as  to  comparison  of 240 

Hanging  (see  also  Execution  of  death  sentence)  : 

More  ignominious  than  shooting;  for  what  offenses 346 

Harboring  or  protecting  the  enemy.     (See  Enemy.) 
Hard  labor: 

Confinement  at;  for  officers  only  with  dismissal 322 

Confinement  at,  legal  sentence  for  officer 310 

Confinement  at,  legal  sentence  for  soldier 311 

Confinement   at;    statement   in   sentence,   effect   of   omis- 
sion        322 

Without    confinement    as    disciplinary    punishment;    one 

week    limit 333  ;  A.  W.  104 

Without  confinement,  as   mitigation  from   confinement  at 

hard    labor 382 

Without  confinement;   Executive  order,   War  Department 

policy p.  283(111)  ;  p.  286 (VII)  ;  323 

Without  confinement,  legal  sentence  for  soldier 311 

Without  confinement ;  sentence  continuous,  exceptions 401 

Hawaii : 

Double  jeopardy  rule  in 149(3)  (d) 

Trial  in  either  civil  or  military  court  in,  bar  to  trial  in  other 

for  same  offense 149 (3)  (a) 

Hazardous  duty,  absence  with  intent  to  avoid : 

Analysis  and  proof  of  offense 409,  409 (note)  ;  A.  W.  28,  58 

A.  W.  28,  a  rule  of  evidence  and  not  a  punitive  article 74 (n) 

Deemed  desertion  under  A.  W.  28 409 

Form  for  specification App.  6(20) 

Hearsay  evidence: 

Admissions.     (See  Admission  against  interest.) 

Books  of  account 244 

Confessions.     (See  Confession.) 


INDEX.  743 

[References  are  to  paragraphs,   except  that   the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App,"  indicates  Appendix.] 

Hearsay  evidence — Continued. 

Exceptions —  Par 

Commercial  lists,  registers,  etc 221a(7) 

Dying   declarations 221a(l),222 

Official   statements   in   writing 221a  ( 5 ) ,  236a,  238a 

Regular  entries  in  a  book  of  business  transactions...  221a(4), 

244 

Statements  concerning  family  history 221a(3) 

Statements,  explanations,  res  gestae 221a(9),22S 

Statements  of  deceased  persons,  in  general 221a(10) 

Statements  of  fact  against  interest 221a(2) 

Statements  of  mental  or  physical  condition 221a(8),  226 

Treatises  or  essays  on  subjects  of  science  or  art 221a(6) 

Hearsay  rule  stated 221 

On  investigation,  not  admissible  because  so  made 221 

In  official  statements,  etc.,  not  admissible  because  so  made-      221 

Instances   of,   enumerated 221 

Investigating  officer,  statements  to 237a(note  2) 

Memoranda.      (See  Memoranda.) 

Rule  defined;  reasons  for;  discussed 221 

Homicide : 

By  sentinel  to  prevent  escape  of  prisoner 442,  p.  409 

Corpus  delicti  established  by  proof  of  death 225 (c) 

Death  must  result  within  year  and  day 442,  p.  410 

Example  of  justification  or  excuse 442,  p.  410 

In  compliance  with  orders  or  supposed  duty 442,  p.  408 

In  self-defense 442,  p.  410 

Manslaughter.      (See  Manslaughter.) 
Murder.     (See  Murder.) 
Honorable  discharge  (see  also  Discharge)  : 

Certificate  to  be  furnished  enlisted  man A.  W.  108 

No  release  as  to  desertion  in  prior  enlistment  by 38 (e) 

Horses,  losing,  injuring,  etc: 

Analysis  and  proof,  definitions,  penalty 434 ;  A.  W.  84 

Form  for  specification App.  6(74) 

Housebreaking    (see  also  Burglary)  : 

Burglary  distinguished 443,  p.  420 

Definitions  and  principles,  proof,  penalty 443,  pp.  413, 420 ; 

A.  W.  93 

Form  for  specification App.  6(98) 

Limitation  of  three  years 149(2) 

Husband  and  wife: 

Cases  enumerated  where  wife  may  testify  against  husband.      228 
Communications  are  privileged ;  third  parties  may  testify.     227, 

228 
Competency  as  witnesses  for  and  against  each  other 213,  228 


744  INDEX. 

[References  are   to   paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Idaho,  fees  and  mileage  of  civilian  witnesses  in 185 

Identification  of  accused.     (See  Accused.) 

Identity,  plea  to  specification  as  admission  of 146  ( note  1) 

Ignorance  of  fact,  as  defense 283 

Ignorance  of  law: 

All  residents  presumed  to  know  law  applicable  to  their  resi- 
dence    277,  282 

Articles  of  War;  effect  of  failing  to  read  to  enlisted  men 

discussed 282 

Persons  subject  to  military  law  presumed  to  know  statute 
law  applicable  to  Army,  regulations,  manuals,  orders,  and 

circulars 282 

Immunity,  promise  of 216 

Important  service,  absence  with  intent  to  shirk : 

Analysis  and  proof  of  offense 409,  409  (note)  ;  A.  W.  28,  58 

A.  W.  28,  a  rule  of  evidence  and  not  a  punitive  article 74 (n) 

Deemed  desertion  under  A.  W.  28 409 

Incrimination.      (See   Self-crimination.) 
Index : 

Records  of  general  and  special  courts-martial 357(b)  (2),  360 

Separate,  of  Articles  of  War App.  1,  p.  539 

Indirect  evidence  defined 202 

Individual  counsel.     (See  Counsel.) 
Indorsement : 

Certificate  of  service  by  trial  judge  advocate  as  second,  on 

charge  sheet 77b;  App.  5(7) 

Order  of  reference  for  trial  as  first,  on  charge  sheet—  App.  5(7) 
To  report  of  investigating  officer  as  form  for  forwarding 

charges 76a  (11) 

Inducing  misbehavior  before  the  enemy,  etc.: 

Analysis  and  proof  of  offenses 425,  p.  377 

Definitions  and  principles 425,  p.  379 ;  A.  W.  75 

Forms  for  specifications App.  6(55,  56) 

Injury  to  property,  redress  of: 

Assessment  for  damages;  approval  by  commanding  officer, 

stoppage 481;  A.  W.  105 

Board  of  officers ;  scope  of  powers ;  assessment  of  damages, 

powers  as  to  testimony,  etc 481 ;  A.  W.  105 

Trial  under  A.  W.  89  proper  and  preferably  before  board's 

investigation 481 

Innocence : 

Presumption  of  law  until  guilt  proved 277 

Prima  facie  evidence  may  be  outweighed  by  presumption  of_      279 
Inquest : 

Form  for  report App.  26 

Summary  court  to  hold 483;  A.  W.  113 


INDEX.  745 

[References  are   to   paragraphs,   except  that   the   letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Inquest — Continued.  Par. 

Procedure  in  case  of  sudden,  violent  or  unnatural  death  on 
post,  etc 483;  A.  W.  113 

Insanity,   etc.,  of  accused : 

Action  to  be  taken  because  of  failure  to  plead  as  result  of_      155 

At  arraignment  or  later  stage,  arrest  of  proceedings 154 (g) 

At  time  of  commission  of  facts;  plea  of  not  guilty  proper  154(g) 

Medical  board  to  examine  accused,  when 76b 

Medical  officer  to  examine  accused,  when 76a(9) 

Procedure  to  determine  when  raised  at  any  time  in  trial 219 

Rulings  on,  in  courts-martial ;  by  whom 89,  89a 

Special  plea  not  necessary;  raised  before  sentence 148 (note) 

Voting  by  court  on  question  of,  procedure 219 (g) 

Witnesses  may  be  called  before  court 219 (e) 

Insanity  of  witness  as  affecting  competency 212 

Inspector  General's  Department,  reports  of  special  inspections 
confidential 230 

Insubordination : 

Toward  superior  officer;   offense  defined,  proof,  penalty—     415; 

A.  W.  64 

Toward  warrant  or  noncommissioned   officer;   offense  de- 
fined, proof,  penalty 416 ;  A.  W.  65 

Insular  possessions,  fees  and  mileage,  civilian  witnesses  in 185a-c 

Insurance  premiums,  war  risk,  pay  of  soldier  alloted  for,  may 

not  be  detained  or  forfeited 311 

Intent : 

Change  by  court  of  plea  of  guilty  because  accused  denies,  154 (e)  ; 

A.  W.  21 
Character  of  accused,  when  admissible  to  show ;  examples.      206 

Crimes  distinguished  in  respect  to 280 

Desertion  not  proved  by  payment  of  reward  for  deserter 284 

Desertion,  presumption   as   to  continued  absence  without 

leave 284 

Drunkenness  as  showing  absence  of 284,  285 

"  Guilty  without  criminality  "  an  improper  finding 303 

Ignorance  of  fact  as  showing  lack  of ;  how  far  a  defense 283 

In  homicide;  malice  aforethought 442 

No  statutory  intent  in  A.  W.  61  or  86  to  be  alleged  or 

proved 

Prosecution  must  prove  actual,  to  sustain  conviction 281 

Statutory  intent  described  in  certain  articles  must  be  alleged 

arid  proved 

Statutory  intent  not  expressed  but  matter  of  proof 281 

Interest : 

Does  not  disqualify,  but  affects  weight  of  testimony 213 

Statement  against,  as  hearsay  exception 221a(2) 


746  I2TDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "  p "   indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Interest  of  commanding  officer  in  sale  of  victuals,  etc. :  Par. 

Analysis  and  proof  of  offense 437 ;  A.  W.  87 

Form  for  specification App.  6(80) 

Interlocutory  questions : 

Record  to  show  ruling  on  certain 357 (b)  (35) 

Rulings  on,  by  president  of  court 89 ;  A.  W.  31 

Term  defined 89a(5) 

International  law  (see  also  War). 

Definition  of  "  enemy  " 431 

Judicial  notice 289 

Military  government  a  part  of  law  of  nations 2  (a) 

Interpreter : 

For  courts-martial,  military  commission  or  summary  court ; 

appointment,  compensation 119 ;  A.  W.  115 

For  court  of  inquiry;  appointment,  compensation 119, 

457 ;  A.  W.  115 

For  court  of  inquiry  ;  oath 466 ;  A.  W.  101 

For  courts-martial,  oath 136 ;  A.  W.  19 

Record  to  show  who  acted  as,  and  oath 357b(14) 

Interrogatories.     (See  Depositions.) 

Intoxication  of  witness  as  limited  disqualification 212 

Introduction  to  Manual  for  Courts-Martial : 

Edition  of  1917 xiii 

Edition  of  1920 v 

Investigating  officer: 

Accused  furnished  copy  of  report  of 77b 

Gross-examination  as  to  report,  when  permitted  at  trial 237a 

(notel) 

Duties  prescribed  in  detail;  impartiality 76a(7-10) 

Duty  to  warn  accused  as  to  incrimination 225 (b) 

Form  for  report App.  18 

Power  to  administer  oaths 188 (a)  ;  A.  W.  114 

Report  attached  to  record  of  trial 357 (b)  (56) 

Report  forwarded  by  appointing  authority 367 ( a,  b) 

Report  not  competent  on  trial ;  personal  testimony  required    237a 
Report  on  charges;  form,  inclosures 76a(10) 

Investigation : 

As  ground  for  challenge 121 

By  court  of  inquiry.     (See  Courts  of  Inquiry.) 

By  summary  court;  how  made 351  (e) 

Disciplinary  punishment  cases ;  manner,  where  held 336c 

Hearsay  evidence  not  admissible  because  made  in 221 

Of  charges,     (Bee  Charges;  Investigating  officer.) 
Of   sudden,   violent,   and   unnatural  deaths,   by   summary 
court 483  ;  A.  W.  113 


INDEX.  747 

(References  are  to  paragraphs,   except   that  the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Irons,  placing  in :  Par. 
Accused    not    tried    in    irons;    exception,    validity    unaf- 
fected         88 

Forbidden  ordinarily  ;  exceptions 36 

Issues  in  a  trial,  deiined 195 

Jeopardy,  former.     (See  Former  jeopardy.) 

Joining  in  mutiny,  defined 417 

Joint  offenses: 

Effect  of  conviction  or  acquittal  on  joint  charges 301 

Form   for   charges ^_ 69 

Motion  to  sever  for  trial  by  one  or  more  of  accused 156 

Record  to  srhow  each  accused  had  rights  as  if  tried  alone.  357 (b) 

(39) 

Use  of  one  of  the  accused  as  witness  by  prosecution 156 

When  joint  charges  proper ;  right  of  challenge 69 

Judge  advocate: 

Administration  of  oaths  by 138 (b)  ;  A.  W.  114 

Staff.     (See  Staff  judge  advocate.) 
Trial.     (See  Trial  judge  advocate.) 

Judge  Advocate  General: 

Action  on  death,  unsuspeiided  dismissal  or  dishonorable  dis- 
charge, penitentiary  cases  and  cases  requiring  President's 

approval   or    confirmation 371 ;  A.  W.  50J 

Advice  of  reviewing  authorities,  when 370 (note 3) 

Authority  for  penitentiary  sentence  to  be  stated  in  forward- 
ing record  to 339 

Duties  in  cases  requiring  approval  of  President 399a(b) 

Duties,  in  general,  on  review  of  cases  under  A.  W.  50i 399a 

Law  member  an  officer  in  Judge  Advocate  General's  Depart- 
ment,  when   available 81  (a) 

Nonconcurrence  with  board  of  review 399a(c)  ;  399 (note  2) 

Record  of  general  court  appointed  by  President  directly  to_  366 (a) 
Record  of  general  courts  from  appointing  authorities;  pa- 
pers therewith 79(b),267(a) 

Rehearing,  record  of,  with  that  of  former  hearing,  to 377a 

Reports  to  Secretary  of  War  confidential;   not  furnished 

without  authority 230 

Special  court-martial  records,  permanent  file  of 367 (b) 

Staff  judge  advocate's  report  or  review  to 367,  370 

Judgment    (see  Findings;    Sentence) 294 

Judicial  notice: 

Defined ;  cases  enumerated ;  general  principles 289 

Facts  of  which  courts  take,  to  be  considered  as  evidence 194 

General  orders  convening  general  courts  in  special  juris- 
dictions  14(notel) 

Principles  and  limitations  respecting  doctrine 239 


748  INDEX. 

[References  are   to   paragraphs,   except  that   the   letter   "p"    indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Par. 

Juries,  deliberations  as  privileged  communications 227 

Jurisdiction : 

Concurrent  with  civil  courts;  rules,  procedure 35 

Military,  not  territorial 37 

Of  courts-martial.      (See  Courts-martial  and   the  specific 

court. ) 
Of  courts  of  inquiry.     (See  Courts  of  inquiry.) 

Knowingly  defined,  as  to  making  fraudulent  enlistment 406 

Larceny : 

Corpus  delicti  established  by  proving  articles  missing 225  (c) 

Definitions  and  principles ±  443,  p.  413 

Distinct  and  specific  intent,  independent  of  act,  essential 280 

Distinction  between  custody  and  possession,  examples.  443,  p.  426 

Drunkenness  as  defense 285 

Embezzlement  distinguished 443,  p.  426 

Evil  intent  and  act  must  coexist ;  exception 443,  p.  428 

Forms  for  specifications App.  6 

From  person ;  included  in  robbery 877 

Hearsay  evidence,  instance  of,  in  trial  for 221(2) 

Included  in  robbery 443,  p.  423 

Intent  lacking,  offense  is  not;  examples 443,  p.  428 

Intent  to  return  in  some  other  form,  examples 443,  p.  429 

Limitation  of  three  years 149(2) 

Of  military  property  ;  defined,  proof 444,  p.  456  ;  A.  W.  94 

Of  paper  not  valuable  in  itself,  chose  in  action,  etc 443,  p.  430 

Personal  property  only  subject  of;  real  becoming  personal 

property 443,  p.  430 

Presumption  from  possession  of  stolen  articles 278 

Repentance  immediately   after  offense   committed,  no  de- 
fense  443,  p.  430 

Sale  of  same  property  as  evidence  of 74 (o) 

Sale  of  same  property,  when  joined 74 (o) 

Taking  and  carrying  away  necessary,  examples 443,  p.  424 

Taking  from  one  having  possession  only,  sufficient 443,  p.  428 

Taking  from  possession   of  owner  without   consent  neces- 
sary;  examples 443,  p.  424 

When  committed  in  burglary,  facts  should  be  set  out 443,  p.  420 

Lawful  order,  nature  of 415 

Law  member: 

Absence,  procedure  upon 85 

Advises  accused  as  to  pleading  limitations 149(3)  (h)  ; 

357  (b)  (21);  App.  9,  p.  610 

Advises  accused,  ignorant  of  rights 357 (b)  (26) 

Advises  accused  of  right  to  testify  or  make  statement—  89a(7)  ; 

215 ;  357b  (34)  ;  App.  9,  p.  612 


INDEX.  749 

[References  are   to  paragraphs,   except  that  the  letter  "p"   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Law  member — Continued.  Par. 

Appointment  and  rank 12 (c)  ;  81  (a)  ;  89 

Challengeable  only  for  cause 120 ;  A.  W.  18 

Change  of,  during  trial,  procedure 93 

Designated  as  such  in  order  appointing  court 12 (c) 

Duties  respecting  insanity,  etc.,  of  accused  raised  during 

trial 219 (b)  (f) 

Equal  rights,  in  addition  to  special  duties,  with  other  mem- 
bers    89a(6) 

Explains  effect  of  plea  of  guilty;  shown  in  record 89a(7), 

154 (d),  357b(22)  ;  App.  9,  p.  611 

Form  for  use  of App.  9 

Ordinarily  of  field  rank 12 (c) 

Overruling  by  court,  effect  to  be  considered.  89(a)  (notel),90(b) 
Presence  or  absence  at  opening  and  after  recess,  in  rec- 
ord  357(b)  (37,  38) 

President's  duties  in  absence  of.     (See  General  courts-mar- 
tial— President  of  general  court-martial.) 

Procedure  if  no  qualified  officer  available 12 (c) 

Record  to  note  name,  presence,  etc 357 (b)  (7-9) 

Rehearing,  duties  on 377a 

Reliance  on  ruling  of,  may  be  stated  in  record 89(a)  (notel) 

Rulings  on  interlocutory  questions 89a ;  A.  W.  31 

Where  seated  in  court 83 

Law  of  nations.     (See  International  law.) 

Law  of  war.     (See  War.) 

Laying  a  duty  upon  bringing  in  victuals,  etc. : 

Analysis  and  proof  of  offense 437 ;  A.  W.  87 

Form  for  specification App.  6(79) 

Leading  questions: 

Court  has  discretion  to  permit;  care  to  be  exercised 254 (c) 

Defined;  examples 254(a) 

Exceptions  permitting  asking,  enumerated 254 (c) 

Permissible  on  cross-examination 251 

Wide  latitude  allowed  in  depositions 265 

Leaving  post  before  being  relieved: 

Analysis  and  proof  of  offense 436 ;  A.  W.  86 

Capital  offense  in  time  of  war 41 ;  A.  W.  86 

Corpus  delicti,  proof  of 225 (c) 

Definitions   and  principles 436 

Form  for  specification App.  6(78) 

Lesser  included  offense: 

Conviction  of  separate  and  distinct  offense  not  proper  as  a__      299 

Enumerated,  in  part 377 

Method  of  pleading  guilty  of  absence  without  leave  only —      298 

Power  to  approve 377 (a) 

21358°— 20 48 


750  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

Lesser  Included  offense — Continued.  Par. 

Power   to  confirm ,. 379 (a) 

Power  to  convict  of;  procedure 377 

Procedure  to  be  followed  by  court  on  finding  guilty  of__  208,  300 

Letters.     (See  also  Documentary  evidence.) 

Method  of  authenticating  in  trial 239 

Presumption  as  to  receipt  of  properly  mailed 278 

Liberty  loan  bonds,  pay  allotted  for  not  subject  to  detention  or 

forfeiture 311 

Life  imprisonment: 

Or  death,  mandatory  for  murder  or  rape 40 (note  1) 

Sentence  requires  three-fourths  vote 295, 308 ;  A.  W.  43 

Sentence,  record  to  show  necessary  concurrence 357 (b)  (50) 

Limitations : 

Clemency  applications,  not  more  than  one  in  six  months 404 

Of   disciplinary  power 333-336 ;  A.  W.  104 

On  punishment  by  general  court-martial__ 40 ;  A.  W.  42,  45 

On  punishment  by  special  court-martial 42;  A.  W.  13 

On  punishment  by  summary  court-martial. 44  ;  A.  W.  14 

Time.     (See  Statute  of  limitations.) 

Trials.     (See  Former  jeopardy.) 

Upon  power  to  convene  court  of  inquiry ^_      448 

List  of  common  errors , App.  27 

Loss  of  military  property  defined 433,  434 

Loss    or   destruction   of   records   before   action    of   reviewing 
authority , 363 

Mail,  presumption  as  to  receipt  of 278 

Maiming  defined;  distinguished  from  mayhem   (see  also  May- 
hem)   _    446,  p.  464 

Making  false  muster.     (See  False  muster.) 

Making  false  returns.     (See  False  returns.) 

Making  or  delivering  receipt  without  knowing  of  its  truth,  444,  p.  455 ; 

A.  W.  94 

Malice,  definition  of „      442 

Mandatory  sentence  (see  also  Death  sentence;  Dismissal): 

As  permitting  return  of  record  for  reconsideration 352, 

372  ;  A.  W.  40 
Manslaughter  (see  also  Homicide) : 

Assault  with  intent  to  commit 443,  p.  444  ;  A.  W.  93 

Conviction  of,  under  charge  of  murder 300,  377 

Definitions  and  principles,  voluntary  and  involuntary.  443,  p.  413 

Dying  declaration,  when  receivable  in  trial  for 222 

Instances  of  adequate  and  inadequate  provocation 443,  p.  414 

Instances  of  culpable  negligence 443,  p.  415 

Lesser  included  offense  in  murder T 377 

Limitation  of  three  years ,. 149(2) 


INDEX.  751 

[References  arc   to  paragraphs,   except  that   the  letter  "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Manual  for  Courts-Martial :  Par. 

A  source  of  military  law 2(d) 

Executive  order  promulgating, xxi 

Introduction   to   1917  edition xiii 

Introduction  to  1920  edition v 

Modes  of  proof  prescribed  in,  force  of  regulation 198 

Reading     of     pertinent     paragraphs     to     general     court- 
martial 357 (b) (24) 

Maps  as  evidence,  when  admissible -245 

Marine  Corps : 

Distinction   between    cooperation    with    and    incorporation 

into  Army 10 

Members  of  Navy  Medical  Department  serving  with,  when 

subject  to  Articles  of  War 4(d)  ;4(d)(note) 

Officers  of,  when  eligible  as  members  of  courts-martial 10 

When    officers    and    soldiers,    triable    by    military    court- 
martial 4  (c)  ;  4  (d)  (note)  ;  A.  W.  2.  (c) 

When     officers    and     soldiers     triable     by     naval    court- 
martial 4d  (note)  ;  A.  W.  2  (c) 

Marking  body  prohibited 344 ;  A.  W.  41 

Marital  relationship.     (See  Husband  and  wife.) 
Marriage,  not  proved  by  wife's  refusal  to  testify  against  hus- 
band (see  also  Husband  arid  wife) 228 

Martial  law,  at  home;  defined,  source 2(b) 

Materiality  of  evidence: 

Defined 202 

In  prosecution  for  perjury 443,  p.  433 

Maximum  punishments: 

Executive  order  effective  February  4,  1921 349 

In  time  of  peace,  limited  as  to  penitentiary  sentences 348; 

A.  W.  42 
Limits  prescribed  by  President  in  discretionary  cases-  38 ;  A.  W.  45 

Policy  in  applying,  discussed 342 

Mayhem : 

Certain  assaults  included  in  offense  of . 377 

Definition  and  principles ;  proof,  penalty.  433,  pp.  413,  415  ;  A.  W.  93 

Limitation  of  three  years 149(2) 

Maiming  distinguished 46G,  p.  465(3) 

Medical  board: 

Accused  furnished  copy  of  report  of 77b 

Appointment  to  examine  accused  before  trial ;  personnel ; 

observation  ;  evidence  considered ;   report ;  contents 76c 

Challenge  of  member  of 126 (note 2) 

Convened  when  insanity,  etc.,  of  accused  raised  at  trial, 
procedure 219  (d) 


752  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Medical  board — Continued.  rar. 

Members,  when  called  as  witnesses  at  trial 219(b) 

Report,  action  on,  when  insanity,  etc.,  raised  during  trial-      219 
Report  and  copy  sent  to  trial  judge  advocate  with  charges-  76c(4) 
Report  appended  to  record  of  general  court-martial —  357  (b)  (56) 
Reviewing  or  confirming  authority  may  have  convened  at 
any  time  before  final  action  to  consider  mental  condi- 
tion  of   accused (219 (h)  (note) 

Medical  Department,  Navy,  when  members  subject  to  Articles 

of    War 4(d)  ;4(d)(note) 

Medical  examination : 

Compulsory  submission  to,  not  violation  of  self-crimination 

rule 236,  236 (a) 

Of  accused  as  step  in  investigating  charges;  nature 76a(9) 

Testimony  as  to  scars,  marks,  etc.,  on  accused  not  violation 

of  self -crimination  rule 236  (a) 

Medical  officer: 

Accused  furnished  copy  of  report  of 77b 

Examination  of  accused  during  investigation  of  charges 76a(9) 

Examining  accused  as  member  of  later  appointed  medical 

board 76c 

Report  appended  to  record  of  general  court-martial 357 (b)  (56) 

Report  forwarded  by  appointing  authority 367 ( a,  b) 

Report   on   insanity,   etc.,   of  accused   may  be   offered   by 

defense 219  (c) 

Statements  to,  not  privileged 231 

Medical  treatment,  refusal  to  submit  to 68 

Members  of  courts-martial.    (See  Courts-martial  and  the  specific 

courts.) 
Memoranda  (see  also  Documentary  evidence)  : 

Two  kinds  as  evidence;  proof,  refreshing  recollection 241-243 

Mileage : 

Based  on  shortest  usually  traveled  route 185 (note  1) 

Of  court-martial  reporter 113  (e) 

Of  witnesses  (see  Witnesses). 
Military  Academy: 

Professors  and  cadets,  part  of  Regular  Army 4(a)  (note  a) 

Superintendent  may  appoint  general  court-martial,  but  not 

for  officers 14,16;  A.  W.  8, 12 

Military  board : 

President  and  recorder  have  powers  of  notary  public  or  con- 
sul in  foreign  places  where  Army  serving 138 (b)  ;  A.  W.  114 

President  and  recorder  may  administer  oaths  for  military 

purposes,  etc 138 (b)  ;  A.  W.  114 

Suspended  officer  ineligible  as  member  of 814 


INDEX.  753 

[References  are   to  paragraphs,   except  that   the  letter  "p"   Indicates  pa^e, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Military  commission :  Par. 

Concurrent  jurisdiction  with  courts-martial 45 ;  A.  W.  15 

Concurrent  with  general  courts-martial  under  A.  W.  15, 

80-82 3(b)(note  1) 

Investigation  of  charges  by  staff  judge  advocate 76b 

Jurisdiction  stated;  where  concurrent  with  general  courts- 
martial 3(a)  ;  3(b)(notel) 

Limitations  on  jurisdiction  of  military  offenses  discussed 8(b) 

(note  2) 
Military  department: 

Authenticated  copies  of  records  of,  as  evidence 238 

Commander  may  appoint  general  court-martial 14  ;  A.  W.  8 

Commander,  successor  on  death  or  disability  of 19 

Commander's  duties  when  officer  arrested  without  charges 

preferred 50 

Commander's  power  to  appoint  general  courts,  when  termi- 
nated or  suspended 18 

Dismissal  of  officers  in  time  of  war,  confirmation  by  com- 
mander of 378(b);  A.  W.  48 

Judicial  notice  of  existence 289 

Judicial  notice  of  general  or  special  orders  of,  discussed 289 

Mitigation  or  remission  of  sentences,  when  by  commander 

of 381 ;  A.  W.  50 

Report  to  commander  of  habeas  corpus  in  attachment  pro- 
ceedings    169 (a) 

Report  to  commander  of  habeas  corpus  out  of  Federal  court, 

by  telegraph 479 

Witnesses,  duties  of  commander  respecting 163, 164 

Military  discipline,  conduct  prejudicial  to.     (See  Conduct  preju- 
dicial to  good  order,  etc.) 

Military  duty  as  punishment,  forbidden 345 

Military    government   defined;    kind    of   military   jurisdiction, 

part  of  law  of  nations 2 (a) 

Military  jurisdiction : 

Exercised  through  certain  enumerated  military  tribunals 3 

Not  territorial 37 

Sources  enumerated 1 

Three  kinds  enumerated 2 

Military  law: 

Defined;  nature;  written  and  unwritten;  sources 2(d) 

Persons  subject  to 4  ;  A.  W.  2 

Unwritten  military  law  is  "custom  of  war";  source 2(d) 

Military  prisoner.     (See  Prisoner.) 
Military  property  (see  also  Property)  : 

Embezzlement,  misappropriation,  sale,  etc. ;  definitions,  ex- 
amples, proof 444,  p.  456 ;  A.  W.  94 


754  INDEX. 

[References  are   to   paragraphs,   except  that   the   letter   "p"    indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Military  property — Continued.  Par. 

Offenses  under  A.  W.  83  or  84  "  willfully  "  or  "  through  neg- 

l^»t" 281 

Purchasing     or     receiving     in     pledge;     offense     defined, 

proof 444,  p.  548 ;  A.  W.  94 

Sale,  analysis  and  proof,  penalty 444,  pp.  449,  458 ;  A.  W.  94 

Sale  of  stolen,  how  charged 74 (o) 

Similar  offense  under  A.  W.  84,  evidence  of  as  bearing  on 

intent 206  (4) 

Soldier  selling;  example  of  what  would  be  hearsay  evi- 
dence   221(3) 

Soldier  selling,  injuring,  etc. ;  analysis  and  proof  of  offense-    434 ; 

A.  W.  84 

Soldier  selling,  injuring,  etc. ;  definitions  and  principles 434 

Soldier  selling,  injuring,  etc. ;  forms  for  specifications App.  6 

(74,75) 

Suffering  to  be  lost,  etc. ;  analysis  and  proof  of  offense 433 ; 

A.  W.  83 

Suffering  to  be  lost,  etc. ;  definitions  and  principles 433 

Suffering  to  be  lost,  etc.;  form  for  specification -App.  6(73) 

Military  service,  conduct  tending  to  bring  discredit  on.     (See 
Conduct  of  a  nature  to  bring  discredit  upon  the  military 
service. ) 
Military  tribunals: 

Concurrent  jurisdiction  with  courts-martial 45 ;  A,  W.  15 

Kinds  of,  enumerated 3 

Military  witnesses.     (See  Witnesses.) 
Militia  (see  also  National  Guard)  : 

When  subject  to  Articles  of  War 4 (a)  (noteg)  ;  A.  W.2(a) 

Minor : 

Habeas  corpus.     (See  Habeas  corpus.) 

Right  to  arrest  and  try  deserter  paramount  to  parent's 

rights 60 

Testimony  of  child;  rule  as  to  admissibility,  change  from 

common   law 210(a) 

Misappropriation  of  military  property 444,  p.  456 ;  A.  W.  94 

Misbehavior  before  the  enemy: 

Analysis  and  proof  of  offenses 425,  p.  377  ;  A.  W.  75 

Capital  offense 41 ;  A.  W.  75 

Definitions  and  principles 425,  pp.  377,  378 

.    Finding  of  absence  without  leave  under  charge  of 300 

Forms  for  specifications App.  6(50-59) 

Misbehavior  of  sentinel.     (See  Sentinel.) 

Misrepresentation  defined  as  to  fraudulent  enlistment 405 

Mistrial  not  regarded  as  a  trial 149(3)  (c) 


INDEX.  755 

CReferences  are  to  paragraphs,   eaccept  that   the   letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Mitigation :  Par. 

Confinement  already  served  as  basis 401 

Of  punishment,  denned ^ __^_, 380 

Of  sentence ;  described ;  by  whom  exercised ;  extent.  381 ;  A.W.  50 
Of  sentence ;  officers  who  may  be  empowered  by  President.    381 ; 

A.  W.  50 
Of  sentence;  when  permissible.^. 382 

Modification  of  sentence  before  publication ,. 387 

Money,  taking  of.     (See  Bribe.) 

Montana,  fees  and  mileage  of  civilian  witnesses  in 185 

Morning  report: 

Original  admissible  without  calling  officer  making 238a 

Proof  of  absence  without  leave  from  entries  in , 284 

Motion  to  elect  not  proper 157 

Motion  to  sever  in  joint  charges 156 

Motive: 

Admission  of  evidence  to  show,  when  proper 206 

Proper  presumptions  of  fact  as  to 278 

Statement  of  accused  in  explanation  of 290 

Murder  (see  also  Homicide)  : 

Analysis  and  proof 442,  pp.  408,  411 ;  A.  W.  92 

Assault  and  battery,  conviction  of,  on  trial  for 300,  377 

Attempt  to  murder,  a  lesser  included  offense  in 377 

Capital  offense  at  all  times 41 ;  A.  W.  92 

Conviction  of,  by  whom  to  be  confirmed 378 (d)  ;  A.  W.  48 

Death  by  hanging,  usual  capital  penalty . 346 

Definitions  and  principles 442,  p.  408 

Distinct  and  specific  intent,  independent  of  act,  essential 280 

Drunkenness  as  defense 285 

Dying  declaration,  when  admissible  in  trial  for 222 

Form  for  specification App.  6(92) 

Lesser  included  offenses  enumerated 377 

Manslaughter,  conviction  of,  on  trial  for 300,  377 

No  limitation  as  to  time  of  trial  for 149(2) 

Muster  in,  unlawful  by  officer : 

Analysis  and  proof  of  offense 406 

Definitions  and  principles 406 ;  A.  W.  55 

Forms  for  specifications App.  6(5) 

Muster,  making  false: 

Analysis  and  proof  of  offense 407  ;  A.  W.  56 

Definitions  and  principles 407 

Forms  for  specifications App.  6(6-12) 

Muster,  taking  money  in  connection  with: 

Analysis  and  proof  of  offense 407 ;  A.  W.  56 

Definitions    and    principles 407 

Forms   for   specifications App.  6(6-12) 


756  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Mustering  false  officer  or  soldier :  Par. 

Analysis  and  proof  of  offense 407 ;  A.  W.  56 

Definitions  and  principles 407 

Forms  for  specifications App.  6(6-12) 

Mutiny : 

Analysis  and  proof  of  offenses  under  A.  W.  66 417 

Analysis  and  proof  of  offenses  under  A.  W.  67 418 

Capital  offense  at  all  times 41 ;  A.  W.  66 

Conviction  of,  whose  confirmation  required 378  (d)  ;  A.  W.  48 

Definitions  and  principles  under  A.  W.  66,  67 417,418 

Distinct  and  specific  intent,  independent  of  act,  essential—      280 

Drunkenness  as  showing  lack  of  knowledge  or  intent 286 

Failure  to  suppress,  capital  offense  at  all  times 41 ;  A.  W.  67 

Five  offenses  under  A.  W.  66 :  Attempting  to  create,  begin- 
ning, joining  in,  exciting,  and  causing 417 

Forms  for  specifications  under  A.  W.  66 App.  6 

Forms  for  specifications  under  A.  W.  67 App.  6 

No  limitation  as  to  time  of  trial  for 149(2) 

Penitentiary  offense ;   rule  to  be  applied 40,  338 ;  A.  W.  42 

Two  offenses  under  A.  W.  67 :  Failure  to  suppress,  and  fail- 
ure to  give  information 418 

Name: 

Alias,  use  of,  in  preparing  charges 74 (i) 

Christian  name  used  in  preparing  charges 74  (h) 

Power  of  court-martial  to  correct,  on  conviction 299 

Presumption  from  identity  of  names 278 

National  Guard: 

Court-martial  system  for,  when  not  in  Federal  service App.  2 

When  subject  to  military  law 4 (a)  (notes  d,  g)  ;  A.  W.  2 

National  Home  for  Disabled  Volunteer  Soldiers : 

Inmates  subject  to  Articles  of  War 4(f)  (note 2) 

Naval  court-martial,  trial  of  Navy  personnel  for  offenses  against 
Articles  of  War 4d(note)  ;  A.  W.  2(c) 

Navy,  members  of  Medical  Department  serving  with  marines, 
when  subject  to  Articles  of  War 4(d)  ;  4(d)  (note) 

Neglect  of  duty.     (See  Disorders  and  neglects,  etc.) 

Nevada,  fees  and  mileage  of  civilian  witnesses  in 185 

New  Mexico,  fees  and  mileage  of  civilian  witnesses  in 185 

Nolle  prosequi : 

Acquittal  as  preferable  to . 158 

Definition,  principal  grounds,  effect,  when  entered 158 

Entering  against  accomplice,  to  secure  his  testimony __  217 (notes) 
Form  for__  App.  10,  p.  619 

Noncapital  offenses  (see  also  Crimes  and  offenses) 446,  p.  463; 

A.  W.  96 


INDEX.  757 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Noncommissioned  officers :  Par. 

Arrest  of  enlisted  men,  as  means  of  restraint,  by,  when 

permitted 52 

Arrest,  status  when  in 53 

Excepted,    above   rank   of  corporal,   from   jurisdiction   of 

summary  courts-martial  by  G.  O.  71,  W.  D.,  1920 p.  656 

Included  under  word  "soldier" 4(notel)  ;  A.W.I  (b) 

Insubordinate  conduct  toward 416 ;  A.  W.  65 

May  be  "commander  of  a  guard"  under  A.  W.  71 421 

Members  of  Army  Nurse  Corps,  warrant  officers  or  field 

clerks  can  not  be  reduced  to  grade  of 310a 

Offenses  against  in  execution  of  office ;  penalty 416 ;  A.  W.  65 

Power  to  quell  frays,  disorders,  etc. ;  penalty 419 ;  A.  W.  68 

Reduction  to  the  ranks.     (See  Reduction  to  the  ranks.) 

Reprimand  proper  penalty  for 318 

Summary  court-martial,  not  triable  by,  on  objection;  pro- 
cedure   43 ;  A.  W.  14 

Nonsupport  of  wife  and  children ;  wife  may  testify  against  hus- 
band accused  of 228 

Not  guilty.     (See  Acquittal ;  Pleas.) 
Notary  public: 

Authorized  to  administer  certain  oaths  for  War  Depart- 
ment; perjury 443,  p.  434 

Certain  officers  have  powers  of,  in  foreign  places  where 

Army  Is  serving 138 (b)  ;  A.  W.  114 

Oath  (see  also  Affidavit)  : 

Additional  ceremony  permitted,  to  make  binding 132 (d) 

Administered  anew  for  each  case 132 (c) 

Affirmation;  closing  sentence  of  adjuration  omitted 132 (b) 

Affirmation  included  in,  if  affirmation  authorized 433,  p.  434 

Authority  to  administer,  officials  enumerated 138 ;  A.  W.  114 

Decorum  during  administration  of 86 

Delivery  of  record  of  trial  to  accused 117,  366(b) 

Depositions  taken  before  military  or  civil  officer  authorized 

to  administer 175 

False,  in  connection  with  claims  against  Government-  444,  p.  454 ; 

A.  W.  94 

For  administrative  purposes,  who  may  administer 138 

Forms  for,  enumerated 132-138 

Includes  affirmation,  where  affirmation  authorized 443,  p.  434 

Of  accuser ;  form  on  charge  sheet App.  5 

Of  allegiance,  how  violation  pleaded 74(1) 

Of  enlistment ;  failure  to  read  Articles  of  War 282 ;  A.  W.  109 

Of    interpreter    of    court    of    inquiry,    same    as   of   court- 
martial  466  ;  A.  W.  101 

Of  interpreter  of  court-martial ;  form 136 ;  A.  W.  19 


758  INDEX. 

[References  are  to  paragraphs,   except  that   the  letter   "  p "   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Oatli— Continued.  Par. 

Of  member  of  court-martial,  form 132  ( a)  ;  A.  W.  19 

Of  member  of  court  of  inquiry ;  form 466 ;  A.  W.  100 

Of   members  'of  general   court-martial;    taking,    noted   in 

record 357(b)  (17) 

Of  recorder  of  court  of  inquiry ;  form 466 ;  A.  W.  100 

Of  reporter  of  court-martial ;  form 135 ;  A.  W.  19 

Of    reporter    of    court    of    inquiry,    same    as    of    court- 
martial 466;  A.  W.  101 

Of  trial  judge  advocate  and  assistants ;  form  133, 134 (b)  ;  A.  W.  19 

Of  witness  before  court-martial;  form 134(a) 

Of  witness  before  court  of  inquiry,  same  as  before  court- 
martial 466;  A.  W.  101 

Of  witness;  form,  administration 134 

Of  witness,  general  court-martial  record  to  show 357(b)(25) 

Recalled  witness  not  resworn  but  warned ^ 255 

Recalled  witness  warned  as  to;  noted  in  record 357(b)  (27) 

Standing  in  court  during  administration  of 86 

Substance  as  in  statutory  form  sufficient 443,  p.  434 

To  test  competency ;  purpose,  form____ 137 

Trial  judge  advocate  and  assistant ;  taking  by,  noted  in 

record , 357 (b)  (m 

Objections,  reasons  for,  to  be  stated 250 

Offenses.     (See  Crimes  and  offenses.) 
Officer : 

(In  a  particular  capacity  or  icith  a  reference  to  a  particular 

offense,  see  the  specific  title.) 
Arrest.     (See  Arrest.) 
As  witness.     (See  Witnesses.) 
Conduct  unbecoming ;  offense  defined,  instances,  proof 

445 ;  A.  W.  95 

Discharged  under  selective-service  act;  no  right  to  court- 
martial , 38 (b)    (note  2) 

Disciplinary  punishment  of ;  forfeiture  of  pay-  333,  336 ;  A.  W.  104 
Dismissal.     (See  Dismissal.) 

Drunk  on  duty ;  offense  discussed,  penalty 435 ;  A.  W.  85 

Eligibility   for  court-martial  duty 6,  9-11 ;  A.  W.  4 

Excepted  from  jurisdiction  of  special  and  summary  courts- 
martial  by  G.  O.  71,  W.  D.,  1920 ^ p.  656 

General  officer,  confirmation  by  President  of  sentence  re- 
specting  378 (a) ;  A.  W.  48 

Investigation  of  charges  as  applicable  to 76a  (2,6,7,9) 

Not  triable  by  general  court-martial  appointed  at  Military 

Academy 14;  A.  W.  12 

Not  triable  by  summary  court-martial 43  ;  A.  W.  14 

Previous  convictions;  3  year  limitation  on  introduction 306 

Quitting  post  or  duties  before  resignation  accepted ;  specific 

intent 281 ;  A.  W.  28 


INDEX.  759 

f References  are   to  paragraphs,   except   that  the  letter  wp"   indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Officer — Continued.  Par. 
Refusal  or  willful  neglect  to  deliver  offender  to  civil  au- 
thorities ;  specific  intent 281 ;  A.  W.  74 

Reprimand  proper  punishment  for 318 

Retired.     (See  Retired  officer.) 

Sentence  affecting  status  reported  to  The  Adjutant  General 

310  (note) 

Sentences  which  may  be  imposed  on,  enumerated 310 

Status,   when  in   arrest 49 

Statutory  rule  of  evidence  as  to  desertion 284 (a)  ;  A.  W.  28 

Subject  to  Articles  of  War 4(a)  ;  A.  W.  2(a) 

Trial  of,  by  inferiors  in  rank,  not  usually  permitted ;  how 

decided 12 (a)  ;  A.  W.  16 

Who  may  arrest,  if  taking  part  in  fray,  etc 47;  A.  W.  68 

Word  as  used  in  Manual  for  Courts-Martial 4  (notes  1,  2) 

Word   construed-  as    "  commissioned   officer " ;    classes   ex- 
cluded   enumerated 4  (notes  1,2)  A.  W.  l(a) 

Officer  commanding  for  time  being  defined,  powers,  examples 

369,  374  ;  A.  W.  46 

Officer  preferring  charges  (see  also  Accuser)  : 

Investigation   when    commanding   officer   is 76a(10) 

Investigation  when  only  officer  with  command  is 76a(10) 

Name  and  rank  stated  in  reading  charges  to  accused 144 

Phrase  not  used  in  signing  charges App.  6(i) 

Right  to  prefer 63 

Signature  with  rank  and  organization  to  be  added 64 

Officers'  Reserve  Corps: 

When  ordered  to  active  duty 4 (a)  (note) 

When   reserve  officers   eligible   for  membership  on   court- 
martial 9(c) 

Official  documents: 

Bulky,  not  appended  to  record;  procedure pp.  564(9),  650(5) 

Foundation  for  admission  of 237 

Omission  in  records  of  trial,  correction  of: 

General  and  special  courts-martial 364 

Summary  courts-martial 365 

Omitting  to  render  returns : 

Analysis  and  proof  of  offense 408 ;  A.  W.  57 

Definitions  and  principles 408 

Form   for   specification App.  6(14) 

Open  court: 

Advice  of  defense  counsel  obtained  in 107d 

Advice  of  trial  judge  advocate  obtained  in 99, 101 

Announcement  of  complete  acquittal,  required —  332a  ;  A.  W.  29 
Announcement  of  findings  and  sentence  unless  court  deems 
inadvisable 332(a) 


760  INDEX. 

[References  are   to  paragraphs,   except  that   the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Opening  and  closing,  right  of  trial  judge  advocate 293 

Opening  statements  to  court 197 

Operation,  refusal  to  submit  to,  an  offense 68 

Opinion  evidence  (see  also  Expert;  Hearsay  evidence)  : 

As  to  drunkenness 287 

Not  admissible  as  to  reputation  of  witness 257 

Of  expert 218 

Permissible  as  to  belief  in  veracity  of  impeached  witness 257 

Oral  statements,  how  pleaded 74(1) 

Orderly : 

For  defense  counsel 107g 

For  trial  judge  advocate 105 

Orders,  court-martial : 

Acquittal  merely  promulgated  in 372 (b) 

Announcement  in,  not  necessary  to  validity  of  sentence  or 

acquittal 371 

Date  of  beginning  of  sentence  as  indicated  in 401 

Oregon,  fees  and  mileage  of  civilian  witnesses  in 185 

Original  documents 197 

Panama  Canal  Zone.     (See  Canal  Zone.) 

Papers.     (See  Documentary  evidence.) 

Pardon : 

Defined 150 

Evidence  of;  how  offered,  other  evidence,  constructive  par- 
don       273 

Nolle  prosequi  is  not  equivalent  to 158 

Power  to  mitigate  or  remit  sentence 381 ;  A.  W.  50 

Privilege  against  self-crimination  ceases  on 233 (a) 

Parents  of  minor  deserters,  rights  of 60 

Parole  : 

Giving  different  parole;  analysis  and  proof  of  offense 427; 

A.  W.  77 

Giving  different  parole;  definitions  and  principles 427 

Giving  different  parole;  form  for  specification App.  6(62) 

Making  known  ;  analysis  and  proof  of  offense 427 ;  A.  W.  77 

Making  known;  definitions  and  principles 427 

Making  known;  form  for  specification App.  6(61) 

Revoked,  interrupts  execution  of  sentence 401 

Violation  of,  how  pleaded 74(1) 

Patients,  statements  to  military  or  civilian  doctors  not  privi- 
leged   231,  232 

Pay  and  allowances : 

Court-martial  can  not  order  assignment  of 325,  329 

Court-martial  can  not  order  deposit  of 326 

Detention.     (See  Detention  of  pay.) 


INDEX.  761 

[References  are   to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Pay  and  allowances — Continued.  Par 

Extra,  for  clerical  duties,  when  forbidden 118 

Forfeiture.     (See  Forfeiture.) 
Stoppage.     (See  Stoppage  of  pay.) 

Pay  card  of  accused,  data  on 79(a)  ;  App.  5(6) 

Pay  voucher,  authentication  of 239 

Peace : 

Delivery  of  offenders  to  civil  authorities  in  time  of__  35 ;  A.  W.  74 
Desertion  in  time  of;  Department  policy  regarding  pun- 
ishments         340 

Judicial  notice  of  condition  of 289 

Maximum  limits  of  punishment  in  penitentiary  cases 348 

Officer  dismissed  in  time  of,  only  by  sentence  of  court- 
martial 38 (b)  (notes)  ;  A.  W.  118 

Repeated  desertion  in  time  of,  penitentiary  offense ;  rule  to 

be  applied 40,  337 ;  A.  W.  42 

Penal  code  of  United  States : 

As  guide  for  penitentiary  sentence  and  duration  of  same.  40, 338 ; 

A.  W.  42,  45 
As  source  of  definitions  for  crimes  and  offenses  under  A.  W. 

92,   93 442,  p.  408 

Penitentiary : 

Authority  for  sentence  to,  cited  in  forwarding  record 339 

Classes  of  offenses  to  be  executed  in 40,  337, 338 ;  A.  W.  42 

Clemency  applications  in  cases  of  prisoners  in 402 

Directly  or  indirectly  under  Federal  jurisdiction,  as  place  of 

punishment 396 ;  A.  W.  42 

Instructions  as  to  place  of  confinement  by  Department 341 

Limits  in  peace  time  on  sentence  to 309 ;  A.  W.  42 

Propriety  of  designating  as  place  of  punishment  discussed—    342a 
Review  by  board  of  review  and  Judge  Advocate  General 

of  sentences  to 371,  399a  ;  A.  W.  50* 

Segregation  of  classes  of  prisoners 341 

Sentence  to ;  analogy  to  cases  of  a  civil  nature..  337 

When  sentence  in,  may  be  imposed 40, 337,  396 ;  A.  W.  42,  45 

Peremptory  challenge,  right  of- -  120, 120a  ;  A.  W.  18 

Perjury  (see  also  False  swearing)  : 

Analysis  and  proof  of  offense .  443,  p.  432  ;  A.  W.  93 

Definitions  and  principles -  443,  p.  413 

Forms  for  specifications -  App.  6 

Intent  inseparable  from  act 280 

Limitation  of  three  years 

Number  of  witnesses  required  to  sustain  charge- 
Personal  interest  of  commanding  officer  in  sale  of  provisions...    437; 

A.  W.  87 


762  INDEX. 

[References  are   to  paragraphs,   except  that   the  letter  "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  •'  App."  indicates  Appendix.] 

Personnel  adjutant :  Par. 

Duties  respecting  record  of  summary  court  conviction 79 (a) 

Initials  charge  sheet  of  summary  court  as  to  pay  card 

entries App.  5(6) 

Special  court-martial  order,  forwarding  by 400 

Special  court-martial  records;  delivery  to  and  return  by—  367 (b) 

Persons  subject  to  military  law , 4 ;  A.  W.  2 

Persuading  desertion : 

Analysis  and  proof  of  offense 410 ;  A.  W.  59 

Definitions  and  principles ^ 410 

Form  for  specification App.  6(23) 

Petit  juries,  deliberations  as  privileged  communications 227 

Petition  for  writ  of  habeas  corpus.     (See  Habeas  corpus.) 
Philippine  Islands: 

Civilian  employees  in,  when  not  Federal  employees 171  (note) 

Fees  and  mileage  of  civilian  witnesses  in 185 (note  2) 

Trial  in"  either  military  or  civil  court  in,  is  bar  to  trial  in 

other  for  same  offense „„ 149(3)  (d) 

Witnesses  before  general  courts-martial,  procedure  to  obtain 

in 171 

Witnesses;  no  provision  as  to  special  and  summary  courts 

in 171 

Writ  of  habeas  corpus  issued  in , ,_ 480 

Photographs  as  evidence 245 

Physical  examination : 

Compulsory  submission  to,  not  self-crimination 236, 236 (a) 

Paper  containing,  admissible  without  calling  officer  mak- 
ing     238a 

Rulings  on,  in  courts-martial ;  by  whom 89,  89a 

Physicians : 

Statements  to  civilian,  not  privileged;  penalty  for  refusal 

to   testify 232 

Statements  to  military,  not  privileged;  penalty  for  refusal 

to   testify 231 

Pillage,  quitting  post  to,  analysis  and  proof,  penalty,  forms 425, 

pp.  377,  380  ;  A.  W.  75  ;  App.  6(58) 
Place : 

Allegations  of  in  specifications  discussed;  exaiiip'.es.^ „..  74 (g) 

Of  meeting  of  courts-martial,  how  determined „. „        81 

Where  troops  on  duty,  when  commanding  officer  may  ap- 
point special  courts-martial 21 ;  A.  W.  9 

Where  troops  on  duty,  when  commanding  officer  may  ap- 
point summary  courts-martial™ 25  ;  A.  W.  10 

Pleading  (see  also  Pleas)  : 

Absence  without  leave  to  charge  of  desertion 298 

Alias 74  (i) 


INDEX.  763 

[References  are  to  paragraph*   except  that  the  letter  "p"   Indicates  page, 
"A.  W."  indicate*  Articles  of  War,  and  "  App."  Indicate*  Appendix.] 

Pleading — Continued.  Par. 

Allegations  of  time  and  place 74 (g) 

Alternative,  forbidden  74 (c) 

Change  of  rank 74 (k) 

Charge  should  be  limited  to  statement  of  article  violated—    74 (a) 

Consideration  of  pleadings  in  voting  on  findings 294 

Description  of  accused 74 (b) 

Desertion  followed  by  fraudulent  enlistment 74 (n) 

Disgraceful  offenses 74 (m) 

Evidence  not  proper 74  (d) 

General  prisoner,  description  of 74(j) 

In  words  of  statute 74 (p) 

Larceny  and  sale  of  public  property 74 (o) 

Method  of  oral,  to  charges  and  specifications 144 

Name  of  accused— , 74(h,  i) 

Necessity  of  alleging  intent 281 

Offenses  against  specific  articles 74 (e) 

Oral  statements 74(1) 

Place ^ 74  (g) 

Sale  of  stolen  public  property 74 (o) 

Scandalous  offenses „ 74 (m) 

Specification  must  be  appropriate  to  charge 74 (b) 

Time . 74  (g) 

Written  instrument 74(1) 

Pleas  (see  also  Pleading) : 

Change  by  permission  of  court 154 (b) 

Guilty— 

Before  summary  court;  procedure 351  (d) 

Change  to  not  guilty  by  court,  when 154(d)  (e) 

Explanation  to  accused,  what  to  contain 154 (d) 

Explanation  to  and  answers  of  accused,  required  in 

record 357(b)   (22,  23)  ;  App.  6 

Taking  evidence  after;  procedure;  matter  in  mitiga- 
tion    154(e) 

"Without  criminality,"  equivalent  to  not  guilty 154(f) 

In  abatement-— 

Nature,  error  indicated,  procedure,  waiver 147 

In  bar  of  trial- 
Constructive  condonation  of  desertion 151 

Disciplinary  punishment 333;  A.  W.  104 

Double  jeopardy  may  be  raised  by 149(3)  K 

Former    punishment 152(a) 

Former  trial  as  basis;  proof  required 274 

Insanity,  etc.,  need  not  be  specially  pleaded 148 (note) 

Nature,  grounds 148 

Pardon,  proof  required 150, 273 


764  INDEX. 

[References  are   to   paragraphs,   except  that  the  letter  "pM   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Pleas — Continued.  Par. 

Kinds  enumerated 145 

Not  guilty — 

Change  by  court  of  plea  of  guilty  to : 154 (d)  (e) 

Fermer  jeopardy  may  be  raised  by 149(3)  (g) 

Insanity,  etc.,  at  time  of  commission  of  acts 154 (g) 

Record  of  general  court-martial  to  contain 357  (b)  (20) 

Refusal  to  plead ;  procedure ;  insanity 155 ;  A.  W.  21 

Special — 

Certain  matters  enumerated  inadmissible under_  152(b)  (c)  (d) 

Illegal  enlistment  is  not 152 (b) 

In  special  court-martial ;  record  to  set  out  in  full 358 (e)  . 

Not  necessary  to  raise  question  of  insanity,  etc.,  during 

trial 219  (a) 

Pleading  to  general  issue  when  overruled 153 (d) 

Procedure   when   sustained;    action   of   reviewing  au- 
thority    153 (b) 

Procedure  when  sustained  as  to  certain  charges  and 

specifications 153  (c) 

Several,  to  any  charge  or  specification  permitted 153 (a) 

Statement  of,  evidence,  burden  of  proof,  record 153 (a) 

Three  kinds  of 145 

To  the  general  issue;  usual  form  described 154 (a) 

To  the  jurisdiction — 

Failure  of  record  to  show  jurisdiction  as  invalidating 

proceedings 146 

Nature;  grounds  for;  if  sustained,  bars  further  prose- 
cution        146 

Objection  taken  at  any  time 146 

Pledge  of  military  property,  taking ;  offense  defined,  proof.  444,  p.  458 ; 

A.W.  94 

Plunder,  quitting  post  to,  analysis  and  proof,  penalty,  forms 425, 

pp.  377,  380 ;  A.  W.  75 ;  App.  6  (58) 

Police  secrets  as  privileged  communications 227 

Policy  of  War  Department.     (See  War  Department.) 

Polygamy,  wife  may  testify  against  husband  accused  of 228 

Porto  Rico: 

Fees  and  mileage  of  civilian  witnesses  in 185 

Trial  in  either  civil  or  military  court  in,  bar  to  trial  in  other 

for  same  offense 149(3)  (d) 

Possession  in  larceny  defined 443,  p.  428 

Post: 

As  place  of  confinement  of  general  prisoner 398 

Demand  for  prison  labor  not  to  affect  segregation  policy 399 

Judicial  notice  of  orders  of 289 

Quitting,  to  plunder  or  pillage 425,  p.  380 ;  A.  W.  75 


INDEX.  765 

[References  are  to   paragraphs,   except  that   the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Post — Continued.  Par. 

Restriction  to  limits,  nature  of  punishment 319 

Sentinel's  misbehavior  on 436 ;  A.  W.  86 

Post  exchange: 

Commanding  officer  interested  in  sale  of  articles  by,  offense 
under  A.  W.  87 437 

Embezzlement  by  former  officer  of  funds  of—  444,  p.  459 ;  A.  W.  94 
Post  Office  Department,  presumption  as  to  receipt  of  letters 

from  course  of  business  in 278 

Premeditation.     (See  Intent.) 

Preponderance  of  evidence 296 

President  of  United  States : 

Appointment  of  court-martial  to  try  officer  dismissed  on 

his  order 15 (note) 

Authority  vested  in,  as  a  source  of  military  jurisdiction 1 

Clemency  applications  forwarded  for  action  of ;  six  months' 

interval 402,  404 

Commutation  of  sentence  of  dishonorable  discharge  by 382 

Commutation  of  sentences,  sole  power  of,  unless  delegated 

under  A.  W.  50 384 

Confirmation  of  what  sentences  required  by 378 ;  A.  W.  48 

Courts  of  inquiry — 

Discretion  as  to  publication  of  proceedings  of 472 

May  be  ordered  by,  in  his  discretion 447, 449 ;  A.  W.  97 

Disrespect  toward ;  penalty 413 ;  A.  W.  62 

Exception  of  classes  from  trial  by  special  court  by 41(1)  ; 

A.  W.  13 ;  App.  21, 656 

Exception  of  classes  from  trial  by  summary  court  by 43(2) ; 

A.  W.  14 ;  App.  21,  p.  656 

Limitations  of  punishment  on  order  of 40 ;  A.  W.  45 

Loss  of  files;  confirmation  not  necessary,  alone  can  restore 

files 390 ;  A.  W.  50 

Marine  Corps   officers  on   duty  with   Army  by   order  of, 

eligible  for  court-martial  duty 6, 10 ;  A.  W.  4 

May  appoint  general  courts-martial  as  commander  in  chief.        15 

May  appoint  general  courts-martial  under  A.  W.  8 14 ;  A.  W.  8 

May  appoint  general  courts-martial  under  R.  S.  1230 15 

May  empower  any  commanding  officer  to  appoint  general 

courts-martial 14 (note  1)  A.  W.  8 

Mitigation  or  remission  of  sentences;  powers,  in  general-    381; 

A.  W.  50 
Officer  discharged  under  selective  draft  act  by,  not  entitled 

to  trial 38(b)  (note2) 

Pardon  as  act  of,  defined;  how  evidenced 150,273 

Power  to  drop  officers  from  the  rolls 38(b)  (note 3) 

Power  to  prescribe  maximum  punishments-  309,  348,  349 ;  A.  W.  45 
21358°— 20 49 


766  INDEX. 

[References  are  to  paragraphs,   except  that  the  letter  "p"   Indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

President  of  United  States — Continued.  Par. 

Power  to  prescribe  modes  of  proof 198 ;  A.  W.  38 

Procedure  on  sentences  under  A.  W.  46,  48,  51,  requiring 

approval  or  confirmation  by 399a,  400 ;  A.  W.  50} 

Record  of  general  court-martial  appointed  by,  sent  direct  to 

Judge  Advocate  General 366 (a) 

Regulations  as  to  disciplinary  punishments 333 

Regulations  for  review  of  general  court  or  military  commis- 
sion records  prescribed  by 370 

Rehearing  of  disapproved  or  vacated  sentence  may  be  di- 
rected by : 377a  ;  A.  W.  50} 

Reserve  officers   ordered   to   active   duty  by,   eligible   for 

court-martial  duty 9(c) 

Retired  officers  ordered  to  active  duty  by,  eligible  for  court- 
martial  duty 9(b) 

Review  of  cases  under  A.  W.  50$,  duties  in  connection  with.    399a 
Sentence  requiring  approval  or  confirmation  of,  requires 
prior  action  of  board  of  review  and  Judge  Advocate  Gen- 
eral  371 ;  A.  W.  50} 

Suspension  of  sentence  until  pleasure  of,  known 391 ;  A.  W.  51 

Presumption : 

Genuineness  of  document  from  official  seal,  signature,  etc 236a 

Intent  in  connection  with  crime 280 

Of  general  capacity  of  witness 210 

Of  desertion,  from  absence  without  leave 284 

Of  fact- 
Condition  or  state  of  things  as  continuing 278 

Defined,  nature,  examples 278 

Of  law- 
Defined,  conclusive  and  disputable,  examples 277 

Knowledge  of  Federal,  State,  and  municipal  law 282 

Knowledge  of  military  law,  regulations,  orders,  etc 282 

Prima  facie  evidence,  defined r 279 

Prima  facie  evidence  may  be  outweighed  by  presumption 

of  innocence 279 

Soldier  presumed  to  know  officers  of  his  command,  when 283 

Two  kinds,  of  law  and  of  fact 276 

Pretense  defined  under  A.  W.  64 415 

Previous  convictions : 

Accused  asked  concerning,  shown  in  record 357 (b)  (45) 

Appending  to  record,  shown  in  record 357 (b)  (44) 

As  ground  for  dishonorable  discharge 349  (VI),  284 

Considered  by  court  before  determining  sentence 271 

Considered  by  summary  court-martial 351 (g) 

Defined;  effect  of  remission;  why  considered 307 


INDEX.  767 

[References  are  to  paragraphs,   except  that  the  letter  "p"   Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Previous  convictions — Continued.  Par. 

Not  considered  until  after  findings 271,  307 

Not  proof  of  present  guilt 307 

Opening  of  court  to  receive,  shown  in  record 357 (b)  (42) 

Procedure  as  to  consideration  ;  limitations  of  time p.  284  ( V)  ;  306 

Proof  of ;  how  made,  copies,  disposal 306 

Statement  of,  not  shown  court  before  findings 271 

Prices,  judicial  notice  of  Government 289 

Prima  facie  evidence  defined  (see  also  Presumption) 279 

Prior  offenses  subject  to  previous  laws 487 

Prison  discipline: 

Means  of  enforcing 345 

Sentence  of  court-martial  not  to  interfere  with 330 

Prisoner  (see  also  Accused)  : 

Absence  of,  effect  on  date  of  beginning  sentence  of  confine- 
ment       401 

Change  of  place  of  confinement 389 

Clemency  applications ;  who  may  pass  on,  when 402 

Confinement.     '(See  Confinement.) 

Escape  through  neglect  or  design;  offense  analyzed;  pen- 
alty  57,  423 ;  A.  W.  73 

General;  form  of  specification  in  charging 74(j) 

Habeas  corpus.     (See  Habeas  corpus.) 
Instructions  by  Department  as  to  penitentiaries  for  con- 
finement         341 

Offense  by,  when  second  sentence  takes  effect 401  (b) 

Placing  in  irons  not  permitted,  exceptions ;  shackles,  hand- 
cuffs          56 

Refusal  to  receive  or  keep ;  penalty 55,  421 ;  A.  W.  71 

Release  without  proper  authority ;  offense  analyzed ;  pen- 
alty  57,  423 ;  A.  W.  73 

Remains  subject  to  military  law 38  (c)  ;  A.  W.  2 

Report  by  commander  of  a  guard  on  receipt  of-  55 (note)  ;  A.  W.  72 

Segregation  by  classes  of  offenses 341 

Sentences  legally  imposable  on  general 330 

Term  includes  civil  or  military  prisoner  under  A.  W.  71-73- 

421-423 

Prisoner  of  war : 

Forcing  a  safeguard,;  penalty 428;  A.  W.  78 

Return  to  writ  of  habeas  corpus  in  Philippine  Islands  con- 
cerning        480 

Private : 

Included  under  word  "soldier" 4 (note  1)  ;  A.  W.  l(b) 

May  be  "  commander  of  a  guard  "  under  A.  W.  71 421 

Reduction  in  classification  may  be  made  by  special  court 
unless  changed  by  Executive  order 42 (note) 


768  INDEX. 

[References  are   to   paragraphs,   except  that   the   letter  "p"    indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Private — Continued.  Par. 

Reduction  in  classification  may  be  made  by  summary  court 

unless  changed  by  Executive  order 44 (note) 

Reduction  of  noncommissioned  officer  by  sentence  to  be  to 

grade    of p.  656 

Private  claims  against  officers  and  soldiers,  when  matter  for 

discipline 71 

Privileged  communications : 

Attorney  and  client,  communications  between;  third  par- 
ties may  testify 227 

Civilian  physicians,  statements  to,  not 232 

Confidential  papers,  reports,  etc 230 

Defined ;  wrhen  privilege  available 227 

Deliberations  of  courts  and  juries,  but  not  results  thereof 227 

Diplomatic  correspondence 227 

Husband  and  wife ;  third  party  may  testify 227, 228 

Husband  and  wife;  wife  may  testify  in  bigamy,  etc.,  prose- 
cution         228 

Matter  which  President  directs  to  be  withheld 227 

Medical  officers,  statements  to,  not 231 

Official  communications  between  heads  of  departments 227 

Police  secrets 227 

Reports  of  Judge  Advocate  General  to  Secretary  of  War 230 

Special  inspection  reports,  Inspector  General's  Department-      230 

Telegrams  not,  subject  to  usual  process 229 

Privileges,  sentence  of  deprivation  of,  continuous,  exceptions 401 

Process.     (See  Witnesses.) 

Prohibited  punishments 344,  345 

Promotion : 

Of  member  of  court  by  dismissal  of  accused,  ground  for  chal- 
lenge   . 121(6) 

Soldier  holding  certificate  of  eligibility   to,   may  be  sen- 
tenced to  loss  of  rights  and  privileges  thereunder 311 

Soldier  holding  certificate  of  eligibility  to,  not  triable  by 

summary  court-martial 43 ;  A.  W.  14 

Suspension  from  rank  deprives  of  right  to 314 

Prompt  action  on  charges 77a;  A.  W.  70 

Promulgation  of  Manual  for  Courts-Martial xxi 

Promulgation  of  sentence,  date  of  beginning  of  sentence  from 

order  of 401 

Proof : 

(Required  in  a  specific  offense,  see  that  offense  ly  name; 

see  Evidence.) 
Property : 

Captured  or  abandoned — 

Dealing  in ;  analysis  and  proof  of  offense,  penalty 430 ; 

A.  W.  80 


INDEX.  769 

[References  are  to  paragraphs,   except  that  the  letter  **p"   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Property — Continued. 

Captured  or  abandoned — Continued.  Par. 
Dealing    in    or    not    reporting;    forms    for    specifica- 
tions  „ App.  6(66,67) 

Definitions  and  principles  concerning 430 ;  A.  W.  80 

Failure  or  delay  in  reporting  receipt  of;  analysis  and 

proof  of  offense,  penalty 430 ;  A.  W.  80 

Captured  public — 

Belongs  to  United  States,  misappropriation,  penalty 429 ; 

A.  W.  79 

Definitions  and  principles  concerning 429 

Neglecting  to  secure ;  analysis  and  proof  of  offense,  pen- 
alty, form  for  specification 429;  A.  W.  79;  App.  6  (64) 

Wrongful  appropriation  of;  analysis  and  proof  of  of- 
fense, penalty,  form  for  specification 429 ; 

Injuries  to—                                                        A-  w«  79  >  APP-  6  <65> 
Board  of  officers,  scope,  procedure,  assessment  of  dam- 
ages         481 

Redress  under  A.  W.  105,  procedure 481 

Larceny.     (See  Larceny.) 

Military  property.     (See  Military  property.) 

Personal  property  only  subject  of  larceny 443,  p.  430 

"  Selling  "  a  distinct  offense  from  "  through  neglect  losing  "_      299 
Willfully  destroying — 

Analysis  and  proof  of  offense 439 ;  A.  W.  89 

Definitions  and  principles 439 

Forms  for  specifications App.  6(28-84) 

Willfully  or  negligently  losing — 

Analysis  and  proof  of  offense 433  ;  A.  W.  83 

Definitions  and  principles 281,  433 

Form  for  specification App.  6  (73) 

Prosecutor  (see  also  Accuser;  Trial  judge  advocate)  : 

Defined  and  principles  discussed 17,  22 

May  not  appoint  general  or  special  court-martial  to  try  ac- 
cused  14,  21 ;  A.  W.  8,  9 

Provisions  for  camp,  post,  etc. : 

Abusing,   intimidating,    etc.,   person   bringing;    offense   de- 
scribed, penalty 438  ;  A.  W.  88 

Commanding  officer  not  to  be  interested  in ;  penalty-  437 ;  A.  W.  87 
Commanding  officer  not  to  lay  duty  on  entry  into  post,  etc. ; 

penalty 437  ;  A.  W.  87 

Provoking  speeches  or  gestures.     (See  Reproachful  or  provok- 
ing speeches  or  gestures.) 
Provost  courts: 

Concurrent  jurisdiction  with  courts-martial 3 (a),  45;  A.  W.  15 

Jurisdiction  stated 3(a),  3(b)  (notel) 


770  INDEX. 

[Inferences  are  to  paragraphs,   except  that  the  letter  "p"   Indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Provost  marshal:  Par. 

May  receive  prisoner  without  account  of  charge,  etc 421 

Refusal  to  receive  or  keep  prisoner,  accompanied  by  written 

account  of  offense ;  penalty 55,  421 ;  A.  W.  71 

Psychiatrist : 

Accused  furnished  copy  of  report  of 77b 

Examination  of  accused  during  investigation  of  charges — 76a(9) 
Examining  accused  may  be  member  of  later  appointed  med- 
ical board 76c 

Public  officers: 

Presumption  as  to  holding  to  end  of  term 278 

Presumption  as  to  legality  of  appointment  and  of  perform- 
ance of  duties 277 

Public  property.     (See  Property.) 

Public  records.     (See  Documentary  evidence.) 

Public  trial,  when  proper 92 

Publication : 

In  newspapers  of  officer's  conviction  of  cowardice  or  fraud-    347 : 

A.  W.  44 

Modification  of  sentence  before 387 

Of  court-martial  orders 400 

Of  court  of  inquiry  proceedings ;  discretion 472 

Publications  read  to  court-martial 357 (b)  (32) 

Punishment  (see  also  Sentence)  : 

Of  a  particular  kind;  for  more  detailed  treatment,  see  the 
specific  title.) 

Adaptation  to  offenders  discussed 342,  342a 

Appeal  from  disciplinary ;  effect,  procedure,  contents 333,  335 

By  general  courts-martials ;  penitentiary  sentences,  limits 40 ; 

A.  W.  42 

Capital  crimes  and  offenses  enumerated 41 

Classes  of 343 

Confinement  at  hard  labor 322 

(See  also  Confinement.) 

Considerations  governing  selection  of  court  for  trial 78 

Contempts;  approval  by  reviewing  authority 173 (a)  ;  A.  W.  32 

Cruel  and  unusual  prohibited 344 ;  A.  W.  41 

Death.     (See  Death  sentence.) 

Detention  of  pay  or  part  of  pay 328 

Disciplinary — 

Applicable  to  any  person  subject  to  military  law 336 

As  applicable  to  officers,  discussed 336,  33Gb 

Formal  charges  not  neceisary ;  procedure 33Cc 

Procedure  where  accused  demands  trial 336d 

Should  be  preferred  to  summary  court-martial 336a 

Discretionary,  defined  and  discussed 309 


TKDEX.  771 

[References  are  to  paragraphs,   except  that  the  letter  "p"   Indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

Punishment — Continued.  Par. 

Dishonorable  discharge 320 

Dismissal 312 

Effect  of  previous  conviction  on 307 

Effect  of  turning  State's  evidence  on 216 

Executive  order 348,  349 

Proper  construction  of 309 (note  3) 

Fine 317 

For  field  clerks,  Army  or  Quartermaster  Corps 310a 

For  general  prisoners 330 

For  members  of  Army  Nurse  Corps 310a 

For  officers 310 

For  same  act,  charged  as  two  or  more  offenses  improper 66 

For  soldiers 311 

For  warrant  officers 310a 

Forfeiture  of  pay  and  allowances 324 

Hard  labor  without  confinement 323 

Limitations  by  Executive  order 349 

Limitations  in  peace  time  on  penitentiary  sentence.  309 ;  A.  W.  42 

Loss  of  rank  or  files 

Mandatory — 

Can  not  be  varied 349 

Defined  and  discussed 309 

Maximum,  as  prescribed  by  Executive  order 349 

Military  duty  not  to  be  imposed  as 345 

Mitigation.     (See  Mitigation.) 

Obsolete   enumerated 345 

Offenses  committed  before  present  Articles  of  War  effective-      487 

Penitentiary  sentence,  when  may  be  imposed 40 ;  A.  W.  42,  45 

Policy  of  War  Department  regarding 340-343 

Procedure  to  be  followed  by  court  in  considering 349 

Prohibited  "kinds  enumerated 344,  345 

Proper  as  prison  discipline 345 

Pvecord  of  disciplinary,  how  kept 334 

Reduction   of  noncommissioned   officer 327 

Reprimand 3lS 

Restriction  to  limits 319 

Severity  can  not  be  increased  by  reviewing  or  other  officer 385 

Suspension  from  command 315 

Suspension  from  duty 316 

Suspension  from  rank 314 

Table  of  equivalents 349  ;  p.  283 

Table  to  determine  relative  severity 343 

Punitive  articles 405-446 

Purchasing    military    property    unlawfully;     offense    defined, 

proof 444,  p.  45S;  A.  W.  94 


772  INDEX. 

[References  are   to  paragraphs,   except  that   the   letter   "p"   indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Par. 

Quarrels,  power  to  quell,  persons  enumerated,  penalty  for  diso- 
bedience  419 ;  A.  W.  68 

Quartermaster  Corps,  field  clerks.     (See  Field  Clerks — Army 

and  Quartermaster  Corps.) 
Questions  and  answers: 

Set  out  in  record  of  general  court-martial 357 (b)  (29) 

When  questions  reduced  to  writing  by  counsel 111 

Quitting  guard.     (See  Absence  without  leave;  Misbehavior  of 

sentinel. ) 
Quitting  post  or  colors  to  plunder  or  pillage : 

Analysis  and  proof  of  offenses 425,  pp.  377,  381 ;  A.  W.  75 

Definitions  and  principles 425,  pp.  377,  380 

Form   for  specification App.  6(57) 

Quitting  post  an  included  offense 377 

Quitting  post  or  duties  before  resignation  accepted : 

Analysis  and  proof  of  offense 409 ;  A.  W.  28,  58 

A.  W.  28,  a  rule  of  evidence  and  not  a  punitive  article 74 (n) 

Specific  intent  required 281 

Form  for  specification App.  6(18) 

Rank: 

Arrest  or  confinement  on  orders  of  subordinate  in__  419 ;  A.  W.  68 

Change  during  trial  of  member's 93 

Change,  how  pleaded . 74 (k) 

Court  of  inquiry,  members  of 456 

Hearsay  not  cured  by  reason  of  rank  of  declarant 221 

Loss  of— 

How  accomplished 313 

Legal  sentence  for  officers 310 

Report  of  sentence  affecting  officer  to  The  Adjutant 

General 310  ( note ) 

Members  of  a  court  of  inquiry 456 

Members  of  general  and  special  courts-martial  named  and 

sit  in  order  of 12 (a) 

Not  to  affect  the  rules  of  evidence 200 

Of  defense  counsel,  not  below  grade  of  captain  if  avoidable.    107a 
Power  of  court-martial  to  correct  designation  of,  on  con- 
viction        299 

Power  to  appoint  courts-martial  not  dependent  on 19,  23 

Precedence  among  regulars,  militia  and  volunteers 

10-12 ;  A.  W.  119 

Rules  for  determination  among  officers 12 (b)  ;  A.  W.  119 

Seating  of  members  of  court-martial  according  to 83 

Sentence  to  reduction  in,  of  officer,  illegal 40(note4) 

Statement  of  in  charge,  when  changed  since  offense 74 (k) 

Suspension;  effect 314 


INDEX.  773 

[References  are   to   paragraphs,   except   that   the   letter  "p"   indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Rank — Continued.  Par. 
Trial  by  juniors  in,  forbidden  if  avoidable ;  question  of  dis- 
cretion  12(a)  ;A.  W.  16 

Rape: 

Capital  offense  at  all  times 41 ;  A.  W.  92 

Carnal  knowledge  of  female  under  16,  distinguished 446(4) 

Certain  assaults  included  in  offense  of 377 

Conviction  of,  confirmation  required  by  whom 378 (d)  A.  W.  48 

Definitions  and  principles,  proof,  penalty 442,  pp.  408,  411 ; 

A.  W.  92 

Drunkenness  not  strictly  a  defense 285 

Form  for  specification App.  6(93) 

Hanging,  usual  form  of  execution  if  death  penalty  imposed-      346 

Intent  inferable  from  act 280 

Statutory,  not  included  under  offense  of 446,  p.  465  (4) 

Rating,  specialist,  loss  by  sentence  of  general  or  special  court- 
martial,  legal 311 

Ration  savings,  embezzlement  by  former  officer  of_  444,  p.  459  ;  A.  W.  94 

Real  evidence,  exhibition  of  body  of  accused 236 (a) 

Reasonable   doubt: 

Corpus  delicti  need  not  be  established  beyond 225 (c) 

Defined;  burden  of  proof  on  prosecution 288 

Issues  arising  during  trial  settled  by  preponderance  of  evi- 
dence        296 

Prima  facie  evidence  as  affecting  doctrine  of 279 

Proof  of  guilt  must  be  established  beyond 296 

Reasons : 

For  findings,  may  be  spread  on  record 302 

For  sentence  may  be  spread  on  record 331 

For  weight  given  testimony  or  amount  rejected  not  stated ; 

exception 256 

Receipt : 

Court-martial  can  not  require  soldier  to  give 325 

Delivering  of  less  than  amount  called  for;  examples,  pen- 
alty  444,  p.  454  ;  A.  W.  94 

Making  or  delivering  without  knowledge  that  it  is  true; 

examples,  penalty .-  444,  p.  455 ;  A.  W.  94 

Recollection.      (See   Refreshing   recollection.) 

Recommendation : 

For  clemency,  by  court-martial  or  member  thereof 332 

For  suspension  of  dishonorable  discharge 321 

Reconsideration   (see  also  Rehearing;  Revision): 

Of  findings  where  insufficient  votes  to  sustain  mandatory 
sentence —  309  (note  2) 

Recorder  of  court  of  inquiry.     (See  Court  of  inquiry.) 


774  INDEX. 

[References  are   to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Records  of  courts-martial:  Par. 

Bulky  documents  not  appended;  procedure pp.564  (9),  650  (5) 

Carbon  copy  for  accused,  when  made 117,  3G6(b) 

Contents  of  record  stated  generally  and  in  detail 357 

Defined,  how  prepared,  by  whom,  supervision 355 

Disrespectful  or  otherwise  improper  matter  may  be  omitted.      291 
General  court-martial — 

Appendages  to,  enumerated 357 (b)  56 

Carbon  copy  not  desired  by  accused,  disposition 355a 

Disposition  by  trial  judge  advocate 366 (a) 

Disposition,  with  accompanying  papers,  by  appointing 

authority 367  ( a ) 

Form App.  10,  p.  616 

Record  required  in  each  case,  authentication 354 ;  A.  W.  33 

Return  for  correction  of  error,  omission,  etc.;  restric- 
tion        364 

Signature  and  affidavit  no  part  of  charges  but  copied 

into  record 64 

Legal  record  defined 355 

Loss  or  destruction;  procedure 368 

Original  as  evidence  of  former  trial 274 

Prepared  by  trial  judge  advocate  under  direction  of  court 

and  in  consultation  with  defense  counsel 355 

Previous  convictions ;  use  on  trial,  disposal,  return 306 

Receipt  of  accused  as  to  delivery  of  copy  or  affidavit  of  de- 
livery    366(b) 

Recommendation  that  dishonorable  discharge  be  suspended 

may  accompany 321 

Revision.     (See  Revision.) 

Separate,  complete,  and  independent  for  ench  case 356 

Special  court-martial — 

Binding  of  records 3G2 

Briefed  as  for  a  general  court 361^ 

Certain  named  data  appended  to 358 (b-f) 

Disposition  by  trial  judge  advocate 366 (a) 

Disposition,  with  accompanying  papers,  by  appointing 

authority 367  (b) 

Form App.  11 

Form  and  substance,  in  general,  as  for  general  court 358 

Index  not  required 360 

Number  of  copies 359 

Space  at  end  for  action  of  reviewing  authority 358 (h) 

Oral  testimony  not  recorded,  exceptions,  summary 358 (b) 

Return  for  correction  of  error,  omission,  etc. ;  restric- 
tion       364 

Signature  and  affidavit  no  part  of  charges  but  copied 
into  record  _.  64 


INDEX.  775 

[References  are  to  paragraphs,   «cept  that  the  letter  "p"   Indicates  page, 
"  A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Records  of  courts-martial — Continued. 

Summary  court-martial —  Par. 

Company  commander  initials  charge  sheet  as  to  service 

record  entries App.  5(6) 

Disposition  of  copies  of  charges 79 (a) 

Entry  of  "  only  officer  "  present  with  command 27 

Form  and  substance  of  records 363 ;  A.  W.  12 

Matter  to  be  noted  on,  described 351(d)  (f)  (h)  (i)  (j) 

Personal  adjutant  initials  charge  sheet  as  to  pay-card 

entries App.  5(6) 

Records  filed  in  office  of  commanding  officer 367 (c) 

Records  of  what  action  by  court  and  commanding  officer 

required 363 

Records  transmitted  to  appointing  authority 351(j) 

Return-  for  correction  of  omission,  error,  etc 365 

Time  limit  for  preparation  erf 116 

Records  of  court  of  inquiry.     (See  Court  of  inquiry.) 

Records  of  disciplinary  punishment,  how  and  where  kept 334 

Recross  examination.     (See  Witnesses.) 
Recruiting  duty : 

"  Commanding  officer  "  defined,  with  reference  to  appointing 

summary  court 26 

Retired  officer  as  summary  court  when  on 9(b) 

Recruits : 

Articles  of  War  read  to 282  ;  A.  W.  110 

Unassigned;  part  of  Regular  Army 4(a)(notea) 

Redirect  examination.     (See  Witnesses.) 
Redress : 

For  injuries  to  property 481 ;  A.  W.  105 

Of  wrongs ;  duty  of  commanding  officer,  penalty  for  refusal, 

etc 439,  481 ;  A.  W.  89 

Officer  or  soldier  may  seek  of  higher  authority 485  ;  A.  W.  121 

Reduction  in  classification  of  privates : 

By  special  court-martial  unless  changed  by  Executive  order.        42 

(note) 
By  summary  court-martial  unless  changed  by  Executive 

order 44  (note) 

Reduction  in  rank,  sentence  of  officer  to,  illegal 40(note4) 

Reduction  to  seventh  grade,  legal  sentence  for  enlisted  man  of 

sixth  or  higher  grade 311 

Reduction  to  the  ranks : 

Executive  order  as  requiring  in  certain  cases p.  2S4(IV) 

By  special  court-martial,  when  legal  sentence 42 (note) 

By  summary  court-martial,  when  legal  sentence 44 (note) 

Of  noncommissioned  officer  by  special  court  unless  changed 
by  Executive  order 42 (note) 


776  INDEX. 

[References  are   to  paragraphs,    except  that   the  letter  "p**   Indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

Reduction  to  the  ranks — Continued.  Par. 

Of    noncommissioned    officer    by    summary    court    unless 

changed  by  Executive  order 44 (note) 

Punishment  regulated  by  Executive  order 827,849 

Sentence   improper   for   members   of  Army   Nurse   Corps, 

warrant  officers,  or  field  clerks 310a 

To  be  to  grade  of  private  and  not  private,  first  class p.  656 

Refreshing  recollection : 

Books  of  account  may  be  used  for 244 

Leading  questions  may  be  asked  for  purpose  of 254 (c) 

Memoranda  used  for  purpose  of 241-243 

Refusal  to  aid  in  apprehending  accused  person : 

Analysis  and  proof  of  offense 281,  424 ;  A.  W.  74 

Definitions  and  principles 424 

Form  for  specification App.  6(49) 

Refusal  to  deliver  accused  person : 

Analysis  and  proof  of  offense 281, 424 ;  A.  W.  74 

Definitions  and  principles 424 

Form  for  specification App.  6  (49) 

Refusal  to  plead 155 ;  A.  W.  21 

Refusal  to  receive  or  keep  prisoner : 

Analysis  and  proof  of  offense 421 ;  A.  W.  71 

Definitions  and  principles 421 

Failure  to  receive  or  keep,  an  included  offense 377 

Form  for  specification App.  6(46) 

Regiment : 

Commanding   officer   may   appoint   special    courts-martial-      21 ; 

A.  W.  9 

Commanding  officer  may  appoint  summary  courts-martial.      25; 

A.  W.  10 

Commanding  officer's  summary  court  powers,  although  part 
of  brigade 29 

Regular  Army : 

Composition 4 (a)  (note  a) 

Officers  and  soldiers  in,  subject  to  Articles  of  War 4 (a)  ; 

A.  W.  2(a) 

Rehearing : 

Different  court  to  hear  ;  what  will  satisfy  A.  W.  50*_  377a(note2) 

Double  jeopardy  rule  as  applicable  to ' 149(3)  (e) 

Former  witnesses,  procedure  as  to  testimony 377a 

Power  to  remand  a  case  of  conduct  unbecoming  an  officer 

for : 377 

Power  to  remand  for,  under  power  of  confirmation 379 (c) 

Privilege  against  self-incrimination  continues  on 233 (a) 

Procedure  described  in  detail 377a ;  A.  W.  50} 

Record,   appendages  to 357 (b)  (57) 


INDEX.  777 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Rehearing — Continued.  Par. 

Records ;  duties  of  trial  judge  advocate ;  rights  of  counsel, 

examination  by  members 377a 

Review  or  opinion  on  errors ;  duties  of  trial  judge  advocate, 

rights  of  counsel 377a 

Right  to  order ;  new  court ;  limitation 377a ;  A.  W.  50i 

Table  to  determine  relative  severity  of  punishments,  for  use 

on 343;  A.  W.  40(d) 

Witnesses  may  testify  in  person  on 377a(notel) 

Release  of  accused  at  conclusion  of  favorable  trial 332a ;  A.  W.  29 

Releasing  a  prisoner  without  proper  authority : 

Analysis  and  proof  of  offense 423 ;  A.  W.  73 

Definitions  and  principles 423 

Form  for  specification App.  6(48) 

Relevancy  of  evidence  defined 202 

Relieving  the  enemy.     (See  Enemy.) 

Reminder  of  recalled  witness  of  oath 255 

Remission  of  sentence  (see  also  Sentence)  : 

At  time  of  approval,  effect 383 

Commanding  generals  who  may  be  empowered  by  President 

to  remit  sentences 381;  A.  W.  50 

Does  not  prevent  use  as  previous  conviction 307 

During  suspension 392 ;  A.  W.  52 

Of  suspended  dishonorable  discharge,  a  matter  of  clemency.      403 

Removal  of  causes  from  State  courts : 

Civil  suits  against  persons  in  military  service 484 ;  A.  W.  117 

Criminal  prosecutions  against  persons  in  military  service-     484; 

A.  W.  117 

Reparation,  refusing  or  omitting  to  see  made : 

Analysis  and  proof  of  offense 439 ;  A.  W.  89 

Definitions  and  principles 439 

Form  for  specification App.  6(86) 

Repeal  of  former  Articles  of  War  not  to  affect  prior  offenses 487 

Report : 

Of  inquest,  form App.  26,  p.  678 

Of  prisoners  received ;  penalty  for  failure 422 ;  A.  W.  72 

Of  receipt  of  captured  or  abandoned  property,  penalty  for 

failure 430;  A.  W.  80 

Of  trial  judge  advocate  as  to  acquittal,  etc.,  of  accused™    332a 
Official.     (See  Privileged  communications.) 

Weekly,  of  trial  judge  advocate,  of  uodisposed-of  cases 104; 

p.  607 

Reporter : 

Appointment,  when  authorized 112 ;  A.  W.  115 

Carbon  copy  of  record,  when  prepared  by 117 

Compensation ;  rates  prescribed 113 


778  INDEX. 

[References  are  to  paragraphs,   esrept  that  the  letter  "p"  Indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

Reporter — Continued.  Par. 
Compensation,  when  payable  to  person  in  Government  serv- 
ice  113 (b)  ;  118 

Court  of  inquiry ;  always  appointed  on  Class  B  classification 

inquiry 457 

Court  of  inquiry ;  appointment,  compensation,  enlisted  man 

eligible 457 

Detail  of  soldier  as ;  compensation 115 

Duties  enumerated 112a 

Finding  or  sentence  not  communicated  to;  legality  unaf- 
fected         305 

Oath;  form,  administration 135  A.  W.  19 

Omits  nothing  at  direction  of  trial  judge  advocate  or  coun- 
sel       112a 

Questions  asked  witnesses  may  be  oral  where  there  is 111 

Record  may  be  prepared  by 355 

Record  to  show  who  acted  as  and  oath 357b(12) 

Takes  down  everything  except  as  directed  by  court  itself 112a 

Voucher  for  pay  of  personal  services,  form App.  25 

Voucher;   original  to  disbursing  finance  officer,  copy  for- 
warded with  record 114,  366 (b) 

When  employed  for  special  courts-martial 360a 

When  seated  in  court 83 

Who  can  not  receive  compensation  as 113 

Reprimand : 

As  disciplinary  punishment,  proper 333,  A,  W.  104 

Legal  sentence  for  officer 310 

Legal  sentence  for  soldier 311 

Usually  for  officers  but  may  be  administered  to  others 318 

Reproachful  or  provoking  speeches  or  gestures: 

Analysis  and  proof  of  offense 440,  A.  W.  90 

Definitions  and  principles 440 

Form  for  specification App.  6(86) 

Insulting  gestures  do  not  constitute  assault 443,  p.  440 

Reputation : 

Of  accused,     (See  Character  evidence.) 

Of  witness  ;  how  proved,  personal  opinion 257 

Res  gestre: 

Acts  and  statements  of  conspirators  and  accomplices  must 

be  part  of 224 

Defined;  exception  to  hearsay  rule;  discussed;  examples.  221a(9), 

223 

Reserve  officers: 

On  active  duty 4(a)  (notee) 

When  eligible  for  membership  on  court-martial 9(c) 

Residence,  presumption  of  continuance  until  change  shown 278 

Resignation,  quitting  post  or  duties  before  acceptance 281 


INDEX.  779 

[References  are  to  paragraphs,   except  that  the  letter  **p**   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

Restoration  to  duty :  Par. 

Of  deserter  without  trial,  as  constructive  condonation 151 

Release  from  arrest  and;  not  ground  for  certain  pleas 152 (c), 

A.  W.  70 

Restriction  to  limits: 

As  disciplinary  punishment ;  one  week  limit 333  ;  A.  W.  104 

Legal  sentence  for  officers 310 

Legal  sentence  for  soldier 311 

Nature  of  punishment ;  not  to  conflict  with  duties 319 

Sentence  continuous ;  exceptions 401 

Summary  court  can  not  impose  for  over  three  months 44 ; 

A.  W.  14 

Retainers  to  the  camp  subject  to  Articles  of  War 4<e)  ;  A.  W.  2 

Retaining  a  deserter : 

Analysis  and  proof  of  offense 411 ;  A.  W.  60 

Definitions  and  principles 411 

Form    for   specification App.  6  (25) 

Retired  enlisted  man : 

Attendance  as  witness  at  court-martial 163 

Part  of  Regular  Army 4 (a)  (note  a) 

Retired  officer: 

Attendance  as  witness  at  court-martial . 163 

Court-martial  duty,  when  eligible  for 9(b) 

On  courts  of  inquiry 453 

Part  of  Regular  Army 4 (a)  (note  a) 

Return : 

Of  record  for  revision.     (See  Revision.) 
To  habeas  corpus.     (See  Habeas  corpus.) 

Returns,  false,  or  omission  to  render: 

Analysis  and  proof  of  offense 408 ;  A.  W.  57 

Definitions  and  principles 408 

False ;  must  be  made  "  knowingly  " 281- 

Forms  for  specifications App.  6(13-14)- 

Review,  errors  not  substantial  disregarded  on 376  a ;  A.  W.  37 

Review  of  record  of  trial : 

By  board  of  review.     (See  Board  of  review.) 

By  Judge  Advocate  General  in  conjunction  with  board  of 

review;  duties  prescribed 399  a ;  A.  W.  50} 

By  Judge  Advocate  General,  reviewing  authority's  right,  or 

duty  to  seek 370 (note  3) 

By  staff  judge  advocate;  prescribed,  contents,  form 370 

Reviewing  authority  (see  also  Appointing  authority)  : 

Absence  of,  action  by  officer  commanding  for  the  time  be- 
ing  369;  A.  W.  46 

Acquittal,  no  action  required  on ;  not  to  be  approved  or  dis- 
approved, but  merely  promulgated 372  (b)  ;  A.  W.  40 


780  INDEX. 

[References  are   to   paragraphs,   except  that   the   letter   "  p "    indicates   page, 
"A.  W."  Indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Reviewing  authority — Continued.  Par. 

Acts  in  person ;  method  of  signature r 376 

Adding  to  sentence  by,  illegal 385 

Advice  from  Judge  Advocate  General,  when  may  and  when 

required  to  seek 370 (note  3) 

Approval,  effect  of 372 

Approval  not  required  of  findings  and  proceedings 371 

Approval  of  sentence  by 371 

Confinement,  change  of  place  of 389 

Confinement,  place  of,  designated  by 394 

Cooperation  in  segregation  policy  for  general  prisoners 399 

Court  of  inquiry,  may  or  may  not  publish  proceedings 472 

Date  of  action  by 401 

Decisions  and  orders  stated  at  end  of  record 870 

Defined;    successor;    distinguished    from    appointing    au- 
thority       369 

Desertion,  disapproval  of  sentence  of  conviction,  grounds 

to  be  stated 888 

Designation  of  date  during  confinement  for  dishonorable 

discharge  to  take  effect,  illegal 320 

Designation  of  penitentiary  by ;  rules  applicable 341 

Disapproval,  effect  of 872 

Disapproval  or  return  for  reconsideration  forbidden,  in  cer- 
tain cases— 372 ;  A.  W.  40 

Disposition  of  record  of  trial  by 867 

Duty  where  court-martial  improperly  imposes  sentence  on 

several  charges  for  same  offense 66 

Effect  of  remission  of  sentence  at  time  of  approval 383 

Forms  for  action  by App.  15 

Lesser  included  offense,  approval  of 377 (a) 

Loss  of  files,  power  to  approve  sentence  of,  but  no  power  to 

restore  files 390 

Medical  board  on  insanity,  etc.,  of  accused  may  be  convened 

on  own  motion  by 219(h)  (note) 

Modification  of  sentence  before  publication 387 

No  power  to  add  to  sentences 385 

No  power  to  return  certain  cases  with  a  view  to  more  severe 

punishment 352,  372 ;  A.  W.  40 

No  trial  until  action  of,  in  what  cases 149(3)  (c) 

Proper  authority  to  administer  a  sentence  of  reprimand 318 

Record  of  summary  court  transmitted  to 351  (k) 

Record  of  trial  to  be  forwarded  to 366 

Rehearing,  duties  on 377a 

Revision  of  investigation  by  court  of  inquiry 471 

Special  pleas,  action  on 153 (b) 

Transfer  of  accused  before  action  by 375 


INDEX.  781 

[References  are  to  paragraphs,   except  that  the  letter  "p"   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Revision:  Par. 

Accused,  presence  of,  at  proceedings  ln_.IL 352 

By  court  of  inquiry  of  investigation . 471 

By  general  or  special  court-martial,  procedure 352 

By  summary  court-martial,  procedure 353 

Cases  not  returnable  for,  enumerated 352, 372 ;  A.  W.  40 

Effect  of  presence  of  new  member  in  proceedings  in 93 

Form  for  proceedings 352,  364 ;  App.  10 

Reconsideration   by   court   on   own    motion,    when   prohib- 
ited  352,  372 ;  A.  W.  40 

Record  of;  rules  applicable 357(b)  (57) 

Return  of  records  for  correction ;  how  change  made 364,  365 

Reward  for  deserter : 

As  affected  by  disapproval  of  conviction 388 

As  authority  to  citizen  to  make  arrest ^ 59 

T$o  stoppage  to  collect  if  desertion  charge  unsustained 329 

Payment  of,  not  proof  of  intent 284 

Riot  defined 439,  p.  404 

Robbery : 

Assault  with  intent  to  rob 443,  p.  445  ;  A.  W.  93 

Assaults,  certain,  included  in 377 

Definitions  and  principles,  proof,  penalty 443,  pp.  413,  422 ; 

A.  W.  93 

Drunkenness  as  defense 285 

Examples  of  violence  or  intimidation 443,  p.  423 

Form  of  specification App.  6(99) 

Larceny  from  person  included  in , 377 

Larceny  included  in 443,  p.  423 

Limitation  of  three  years 149(2) 

Roll-call  of  members  of  court,  how  taken 84 

Routine  duties,  absence  without  leave,  punishment  for,  covers 66 

Rules  of  evidence.     (See  Evidence.) 

Running  away  before  the  enemy : 

Analysis  and  proof  of  offenses 425,  pp.  377,  378 

Definitions  and  principles 425,  p.  377  ;*A.  W.  75 

Forms  for  specifications App.  6(50-52) 

Safeguard.     (See  Forcing  a  safeguard.) 

St.  Elizabeths  Hospital,  commitment  of  accused  to,  when  ab- 
normal  1 76c(2) 

Sale: 

Larceny  of  same  property,  when  joined 74 (o) 

Of  military  clothing;  corpus  delicti  established  by  proving 

articles  missing 225(c) 

Of  stolen  public  property,  how  charged 74 (o) 

Sanitary  train,  when  a  detachment  for  disciplinary  purposes 28 

Sanity,  presumption  of  law  as  to 277 

21358°— 20 50 


782 

[References  are  to  paragraphs,   except  that  the  letter  MpM   indicates  pagf, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.  ] 

iv  r 

Saving  clause  in  repeal  of  former  Articles  of  War 4S.T 

Scandal  to  the  service,  how  pleaded 74 

Scientific  treatises,  admission  of 221a(C) 

Seals,  judicial  notice  of  great  seals ;  seals  of  courts,  of  notaries 

public :i::< 

Seating  of  courts-martial S3 

Second  sentence,  taking  effect  of 401  (b) 

Second  trial.     (See  Former  jeopardy.) 

Secondary  evidence,  when  admissible 237 

Secrecy : 

As  to  votes  and  deliberations  of  courts  of  inquiry 470 

As  to  votes  on  challenges,  findings  and  sentence  of  courts- 
martial 91 ;  A.  W.  19 

Secretary  of  War  (see  also  War  Department)  : 

Alone  may  order  an  accused  to  duty  outside  jurisdiction  of 

reviewing  authority 332 (a) 

Assignment  of  retired  officers  to  active  duty  with  their  con- 
sent       9(b) 

Clemency  applications  forwarded'  for  action  of ;  six  months 

interval 402,  404 

Contemptuous  or  disrespectful  words  against 413;  A.  W.  62 

Depositions   to   be  taken   in   foreign   countries,   transmis- 
sion of 182 

Designation  of  place  of  confinement,  in  what  cases.  396 ;  A.  W.  42 
Execution  of  suspended  sentence  in  Disciplinary  Barracks-      393 

Reenlistment  of  deserters  only  with  approval  of 340 

Regulations  as  to  appointment  of  interpreters 119 

Regulations  as  to  appointment  of  reporters 112 

Reports  of  Judge  Advocate  General  to,  divulged  only  by 

permission  of 230 

Retired  officers  on  courts  of  inquiry,  appointment  of 453 

Suspension  of  sentence,  power  of 392,  393  ;  A.  W.  r>2 

Transmission  of  cases  from  board  of  review  and  Judge  Ad- 
vocate General  to 399  a  (b)   (c)  (d) 

Sedition : 

Analysis  and  proof  of  offenses  under  A.  W.  66 417 

Analysis  and  proof  of  offenses  under  A.  W.  67 418 

Capital  offense  at  all  times 41 ;  A.  W.  66 

Definitions  and  principles  under  A.  W.  66,  67 417,  418 

Failure  to  suppress,  capital  effense  at  all  times 41 ;  A.  W.  07 

Five  offenses  under  A.  W.  66 :  Attempting  to  create,  begin- 
ning, joining  in,  exciting,  and  causing 417 

Forms  for  specifications  under  A.  W.  66 App.  6(39,  40) 

Forms  for  specifications  under  A.  W.  67 App.  6(41,42) 

Two  offenses  under  A.  W.  67 :  Failure  to  suppress  and  fail- 
ure tO   give   infnrmnHnn 418 


INDEX.  783 

[References  are   to  paragraphs,   except  that  the  letter  "p"   indicates  pag«, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 

Segregation  of  prisoners  according  to  offenses 341,  396-399 

Self-crimination  (see  also  Fifth  Amendment)  : 

Accomplice  not  called  except  at  own  request 217 

Accused  can  not  be  required  to  admit  his  statement 225 (note  1) 

Accused  may  uof  be  called  as  witness  against  himself 233 

Cases  where  privilege  ceases  enumerated 233 (a) 

Compulsory  submission  to  physical  examination  is  not-   236,  236  (a) 
Person  ordered  to  appear  for  identification  can  not  claim 

privilege 236  (a) 

Privilege  against  applies  to  courts-martial,  and  to  accused 

and    witnesses 233 

Privilege  is  personal,  to  be  asserted  by  witness;  ignorant 

witness 234 

Procedure  on  objection  to  question ;  punishment ;  comment 

on  refusal  to  answer 235 

Tending  to  criminate  distinguished  from  tending  to  degrade-      233 
Testimony  as  to  scars,  tattoo  marks,  etc.,  does  not  violate 

privilege 236  (a) 

Selling  military  property.     (See  Military  property.) 
Sentence  (see  also  Punishment)  : 

(To  a  particular  punishment  or  for  a  particular  offense, 
see  the  specific  title.) 

Action  after  promulgation  of 401 

Action  by  reviewing  authority,  forms  for App.  15,  p.  637 

Adding  to,  by  reviewing  or  other  officer,  illegal 385 

Announcement  in  open  court;  when,  procedure  if  not  an- 
nounced  . 332a 

Application  for  clemency,  effect  on 402 

Approval 360-377 ;  A.  W.  46, 47,  50* 

Approval ;  action  of  board  of  review  and  Judge  Advocate 

General,  when  must  precede 371 ;  A.  W.  50$ 

Approval  as  including  power  to  remand  for  rehearing 377 (c)  ; 

A.  W.  47 

Approval  by  officer  commanding  for  time  being 374 ;  A.  W.  46 

Approval,  formal,  of  findings,  not  sufficient 373 

Approval;  manner,  by  whom 373 

Approval  necessary  to  validity 33, 33a,  371 

Approval  of,  forms App.  15,  p.  637 

Approval  of,  in  excess  of  legal  limit,  effect 386 

Approval  of  lesser  included  offense 377(a)  ;  A.  W.  47 

Approval  of  whole  or  any  part  of 377  (b)  ;  A.  W.  47 

Communication  to  reporter  or  clerk  improper;  legality  un- 
affected        305 

Commutation.      (See  Commutation  of  sentence.) 

Confinement  already  served  as  basis  for  mitigation 401 


784  INDEX. 

[References  are   to   paragraphs,   except  that  the  letter  "p"    indicates   page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Sentence — Continued.  Par. 

Confirmation,  action  of  board  of  review  and  Judge  Advocate 

General,  when  must  precede 371 ;  A.  W.  50$ 

Confirmation,    not    effective    (if    confirmation    necessary) 

without » 371 

Date  of  beginning  is  date  of  announcement  in  court  or  when 

sentence  was  adjudged  by  court 401 

Death.     (See  Death  sentence.) 

Disapproval;  effect  as  final  determination 372 (a) 

Effect  of  approval  or  disapproval  of 372 

Excess  of  legal  limit,  part  legal  may  be  approved  and  exe- 
cuted       386 

Execution  on  vacation  of  order  of  suspension 392 ;  A.  W.  52 

For  field  clerks 310a 

For  member  of  Army  Nurse  Corps 310a 

For  officers 310 

For  soldiers 311 

For  warrant  officers 310a 

Forms  for,  by  courts-martial App.  13,  p.  634 

Forms  for  synopses  of App.  7,  p.  592 

Increasing  on  review  unlawful 352,  385 ;  A.  W.  40 

Interrupted   by   delivery   to   civil   authorities;    completion 

of 35;  A.  W.74 

Life  sentence ;  three-fourths  vote  required__  90a,  295,  308 ;  A.  W.  43 

Lightest  sentence,  how  determined  in  voting 308,  308 (note  2) 

Mandatory.      (See  Death  sentence.) 
Maximum  punishment.      (See  Punishment.) 
Mitigation.      (See  Mitigation.) 

Modification  of  action  before  publication  of 387 

Number  of  votes  necessary ;  death  sentence,  life  sentence, 

over  10  years,  under  10  years 90a,  295,  308 ;  A.  W.  43 

Of  courts-martial ;  approval  or  confirmation  necessary  to 

validity 33,  33a 

Of  courts-martial;  when  approved  or  confirmed,  as  effective 

as  in  civil  courts 33,  33a 

On  rehearing  can  not  be  more  severe 377a ;  A.  W.  50i 

On  summary  court  record 363 

Over  10  years;  three-fourths  yote  required-  90a,  295,  308:  A.  W.  43 
Penitentiary.     (See  Penitentiary.) 

Persons  under  military,  subject  to  court-martial 38 (c)  ;  A.  W.  2 

Powers  incident  to  power  to  approve 377 

Publication,  modification  before 387 

Reasons  for,  may  be  spread  on  record 331 

Record  must  be  complete,  to  sustain 356 

Record  to  show,  and  necessary  concurrence  therein 357 (b) 

(46-51) 
Remission  at  time  of  approval,  effect 383 


INDEX.  785 

[References  are   to  paragraphs,   except  that   the  letter  "p"   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Sentence — Continued. 

Revision.     (See  Revision.)  Par. 

Second  sentence,  when  taking  effect 401  (b) 

Statement  of  service  to  be  considered  in  determining 271 

Ten  years  or  under ;  two-thirds  vote  required 90a, 

295,  308 ;  A.  W.  43 

Term  does  not  include  acquittal 372 (b) 

Voting  on.     (See  Voting.) 

When  effective 371,  401 

Sentinel : 

Defined ;  does  not  include  "  watchman  " 436 

Drunk  on  post ;  analysis  and  proof  of  offense,  penalty 436 ; 

A.  W.  86 

Drunk  on.  post ;  form  for  specification App.  6  (77) 

Leaving  post  before  relief;  analysis  and  proof  of  offense, 

penalty 436 ;  A.  W.  86 

Leaving  post;  form  for  specification App.  6  (78) 

Leaving  post;  proof  of  corpus  delicti 225 (c) 

Misbehavior,  a  capital  offense  in  time  of  war 41 ;  A.  W.  86 

Post  of,  defined 436 

Right  and  duty  over  prisoner 442,  p.  409 

Sleeping  on  post ;  analysis  and  proof  of  offense,  penalty 436 ; 

A.  W.  86 

Separate    brigade,    commanding    officer    may    appoint    general 
court-martial 14;  A.  W.  8 

Service  of  charges  five  days  before  trial  by  general  court-mar- 
tial  SO;  A.  W.  70 

Service  of  process.     (See  Witnesses.) 

Service  record: 

Disciplinary  punishment  not  entered  on 334 

Entries  on,  forms  for  synopses  of  convictions App.  7 

Entries  on,  from  summary  court  charge  sheet 79 (a)  ;  App.  5(6) 

Service  schools,  when  detachments  for  disciplinary  purposes 28 

Severance,  motion  for;  nature,  grounds,  procedure 156 

Shirking  important  service  as  desertion  under  A.  W.  28_  409,  409 (note) 

Shooting  as  mode  of  execution ;  for  what  offenses 346 

"  Short  desertion"  (see  also  Desertion)  : 

A.  W.  28,  a  rule  of  evidence  and  not  a  punitive  article 74 (n) 

Shorthand,  use  of,  authorized  in  taking  testimony 112 ;  A.  W.  115 

Sickness  as  affecting  absence  without  leave 412 

Signature : 

Comparison  of  handwriting „      240 

Of  accused  to  his  statement 290 

To  charges  by  person  subject  to  military  law 62  ;  A.  W.  70 

Silence  not  treated  as  confession 225 (b) 

Sketches,  when  admissible  as  evidence 245 


786  INDEX. 

[References  are   to   paragraphs,   except   that   the   letter  "  p "   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Sleeping  on  post :  Par. 

Analysis  and  proof  of  offense 436  ;  A.  W.  86 

Capital  offense  in  time  of  war 41 ;  A.  W.  86 

Definitions    and    principles 436;  A.  AY.  80 

Form  for  specification App.  6(77) 

Intent  inferable  from  act 280 

No  statutory  intent  described  in  A.  W.  86  nor  to  be  alleged.      281 
Sodomy : 

Analysis  and  proof,  penalty 443,  pp.  413, 439  ;  A.  W.  93 

As  punishable  by  law  of  District  of  Columbia 338 (c) 

Assault  with  intent  to  commit 443,  p.  445  ;  A.  AY.  93 

Definitions  and  principles 443,  p.  413 

Forms  for  specifications App.  6  (107) 

Limitation  of  three  years 149(2) 

Soldier  (see  also  Enlisted  men)  : 

Includes  noncommissioned  officer,  private,  or  any  other  en- 
listed man 4 (notes  1,2)  ;  A.  W.l(b) 

Soldiers'  Home,  inmates  as  persons  subject  to  military  law; 

constitutionality . 4(f)(note2);  A.W.2(f) 

Special  court-martial  orders: 

Form  for App.  16  B,  p.  642 

Publication  in  form  similar  to  those  for  general  courts 400; 

App.  16 
Special  courts-martial   (see  also  Courts-martial  and  generally 

throughout  index)  : 
Advice  in  open  court — 

Of  defense  counsel 107d 

Of  trial  judge  advocate 99 

Appointment : 

Form  for  order  of App.  4,  p.  559 

Who  may  appoint 21;  A.W.9 

Cases  referred  under  A.  W.  12— 

Limits  on  punishment  still  continue 41a  ;  A.  W.  12 

Not  capital  cases  within  A.  W.  25,  when  referred 263 

Not  capital  cases  within  A.  W.  27,  when  referred 272  (note) 

Not  dismissal  cases  within  A.  W.  27,  when  referred 

272  (note) 

On  investigation  by  commanding  officer 76a(  11,12),  78 

Challenge.     (See  Challenge.) 
Charges.     (See  Charges.) 

Closed  sessions ;  when  required ;  when  not  required 91 

Composition,  not  less  than  three  officers 7(b)  ;  A.  W.  6 

Conduct  of  case — 

Fveedom  in 100, 107e,  291 

Powers  of  trial  judge  advocate  and  court 100 

Decorum,  observation  of;  when  standing  required —        86 


INDEX.  787 

[References  are   to   paragraphs,   except   that   the  letter   "p"   indicates   page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.! 

Special  courts-martial — Continued. 

Defense  counsel.     (See  Defense  counsel.) 
Judicial  notice,     (See  Judicial  notice.) 

Jurisdiction —  Par. 

Cases   specially  referred  by   convening   authority   for 

general  courts-martial 41a,  76a(ll,  12), 78 ;  A.  W.  12 

Certain  classes  of  persons  excepted  by  G.  O.  71,  W.  D., 

1920 p.  656 

Failure  of  record  to  show,  ground  for  disapproval 146 

Over  persons  and  offenses,  enumerated 41 ;  A.  W.  13 

Procedure  on  second  trial  where  first  trial  vacated  be- 
cause of  record  not  showing 146(note2) 

Waiver  of  objection  never  confers 146 

Meetings,  times  and  places  of 81 

Members — 

Absence;  duty,  noted  in  record,  reason 85 

Absence,  procedure  upon  return  after 93 

Accuser  or  witness  for  prosecution  ineligible 6 (a), 

129  ;  A.  W.  9 
As  witness  for  prosecution,  for  defense  or  called  by 

court 131 

Challenge.     (See  Challenge.) 

Change,  in  membership,  rank,  during  trial ;  effect 93 

Closed  session,  right  to  require 91 ;  A.  W.  31 

Commanding   officer   not   to   appoint   self;    higher   au- 
thority may  appoint  him 24 

Duty  with  command  during  adjournment 81 

Eligibility 6,  9, 11,129-131 ;  A.  W.  4,  9 

Informing  court  as  to  member  being  accuser  or  witness.      129 

.No  maximum  limitation 7(a)(note2)  ;  A.  W.  6 

Oath;  form,  administration,  when  taken 132 (a) 

Oath  to  test  competency  ;  form 137 

Taking    seat    after    absence;    advisability,    procedure, 

effect 93 

Uniform 82 

Offenses  punishable  by 41 ;  A.  W.  13 

Order  of  appointment,  contents 81 

Order  of  reference — 

Examination  for  errors 97 

Forwarded  by  appointing  authority 367  (b) 

Organization  completed  for  each  case  separately 142, 143 

Persons  triable  by 41 ;  A.  W.  13 

President- 
Acts  not  by  appointment  but  by  by  seniority 89 

Administers  oath  to  trial  judge  advocate  and  assist- 

tants  as  such  or  as  witnesses 133 

Advice  to  accused  as  to  pleading  limitations 149(3)  (h) 


788  INDEX. 

[References  are  to   paragraphs,   except  that   the  letter  "  p "   indicates  page. 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Special  courts-martial — Continued. 

President — Continued.  Par. 

Duty  to  preserve  decorum  ;  admonitions Sft 

Examination  of  order  of  reference  for  trial 97 

Explanation  to  accused  on  plea  of  guilty;  record 154 (d) 

Explanation  to  accused  as  to  right  to  testify 215 ;  App.  9 

Form  for  use  of App.  9,  p.  GOO 

Informs  ignorant  witness  as  to  self-crimination 234 

Insanity,  etc.,  of  accused  raised  during  trial 219 (b)  (f) 

Oaths  for  administrative  purposes 138 (b)  ;  A.  W  .114 

Powers  and  duties  enumerated  and  discussed 89 

Rulings  on  interlocutory  questions 89 ;  A.  W.  ^1 

Summary  of  testimony  made  by,  in  open  court 358 (b) 

Procedure  identical,  where  practicable,  with  general  courts-      350 

Publication,  similar  to  general  court  cases ;  forwarding 400 ; 

App.  11,  p.  629 
Punishment  (see  also  Punishment)  : 

Limits  as  to  nature,  duration,  and  amounts 42 

Limits  of  court  not  changed  in  cases  specially  referred-     41a  ; 

A.  W.  12 

Quorum,  addition  of  members  to  secure;  procedure 7  (a) 

(note  3)  7(b) 

Records.     (See  Records  of  courts-martial.) 
Reporter.     (See  Reporter.) 

Revision  of  proceedings 352,  364  ;  App.  6 

Rulings,   interlocutory  questions 89  ;  A.  W.  31 

Seating- 
According  to   rank ;  when  changed,  according  to  new 

rank 12 (a),  S3,  93 

Of  trial  judge  advocate,  accused,  counsel,  reporter ,._        S3 

Sentence.     (See  Sentence.) 

Trial  judge  advocate.     (See  Trial  judge  advocate.) 
Trial  of  officers,  limitations  upon  punishing  po\ver_^  310 ;  A.  W.  13 
Voting.     (See  Voting.) 
Special  orders : 

As  source  of  military  law 2{<1) 

Judicial  notice  of  certain  kinds ..       289 

Special  pleas.     (See  Pleas.) 
Specification : 

Aider  of  defective — 

Finding  of  guilty  as  covering  defective  specification.-     158a 
Objections  of  accused   during  trial ;   courses   open   to 

court 15Sa 

Allegations  of  time  and  place  in 1_  74  (j,') 

Alternative  pleading  in,  improper 74 (c) 

Defined;  requisites 61,  61  (note  1) 

Evidence  not  to  be  pleaded  in  ;  explained  ;  effect 74  ( J) 

Finding  guilty  on  other  specifications  than  named__   . 298,  300 


INDEX.  789 

[References  are  to   paragraphs,   except  that  the  letter   "  p "   indicates  page, 
"A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Specification — Continued.  Par. 

Forms  under  punitive  articles App.  6 

General  prisoner,  form  for;  allegation . 74(j) 

Method  of  voting  on 294 

Names  in;  Christian,  alias 74 (h,  i) 

Numbering 72 

Order  of  pleading 144 

Rank,  change  of,  since  offense  committed 74 (k) 

Record  of  general  court-martial  to  contain 357 (b)  (18) 

Relation  of,  to  charge . 61,  74(b) 

Signature  and  affidavit ;  contents ;  form  of  oath 75 ; 

A.  W.  70  ;  App.  5 

Single  desertion  followed  by  fraudulent  enlistment 74 (n) 

Statement  of;  utmost  care,  essentials 74 (b) 

Technical  similarity  to  indictment  at  law  not  required 74 (b) 

Two  or  more  inconsistent  offenses  may  be  set  forth  in  sep- 
arate   74 (c) 

Written  papers  and  oral  statements,  when  set  forth  in 74(1) 

Speeches,  reproachful  or  provoking.     (See  Reproachful  or  pro- 
voking speeches  or  gestures.) 

Spoil,    committing 439  ;  A.  W.  89 

Spying : 

Analysis  and  proof  of  offense 432  ;  A.  W.  82 

Capital  offense  in  time  of  war 41 ;  A.  W.  82 

Conviction  of,  confirmation  by  whom  required—  378  (d)  ;  A.  W.  48 

Death  by  hanging  usual  capital  penalty 346 

Definitions  and  principles 432 

Form  for  specification App.  6(72) 

Voting  on  mandatory  penalty  of 308 

Squadron  included  under  word  "battalion" 4(note  1)  ;  A.  W.  l(d) 

Staff  judge  advocate : 

Accused  furnished  copy  of  report  of 77b 

Advice  as  to  proper  court  for  trial 78 

Advice  to  appointing  authorities  on  appointments  to  courts- 
martial 6(c)  (note  2) 

Annual  report,  data  for 3G7(b,  d) 

Assistant's  report  or  review  of  record,  action  on 370 

Consulted  on  questions  raised  by  trial  judge  advocate 15Sd 

Duties  may  be  performed  by  an  officer  acting  as  such_  370 (note  4) 
General  court-martial  charges  referred  to,  for  consideration 

and  advice;  procedure  in  detail 76b 

Medical  board's  report  referred  to 76c 

Order  of  execution  withheld,  secures  data  for  order_  399a(note  1) 

Possible  recommendations  as  to  charges  described 7Gb 

Records  of  special  courts-martial ;  receipt,  how  long  held, 

forwarding 367  (b) 

Report  appended  to  record  of  general  court  martial 357 (b)  (5G) 


790  INDEX. 

[References  are  to   paragraphs,   except  that   the  letter   "  p "   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Staff  judge  advocate — Continued.  Far. 
Report  of  medical  board  on  insanity,  consideration  and  re- 
port  -- 219  ( d ) 

Report  on  investigation  forwarded  by  appointing  author- 
ity  367 (a,  b) 

Reports  of  summary  courts-martial ;  receipt,  data,  destruc- 
tion   367 (c) 

Review  or  report,  nature  of;  additional  data 370 (notes  1,2) 

Review,  thorough,  on  whether  errors  affected  substantial 

rights  _J 37Ga ;  A.  W.  37 

Submits  order  to  effect  recommendations  as  to  charges 76b 

Summary  court  records;  receipt,  data,  destruction 79 (a) 

Staff  officer : 

Suspension  from  command  not  appropriate  punishment 316 

Suspension  from  duty  appropriate  punishment 316 

Standing  in  court 86 

State : 

Civil  authorities.     (See  Civil  authorities.) 

Courts.     (See  State  courts.) 

Same  act  as  offense  against  United  States  and 149(3)  (d) 

State  courts  (see  also  Civil  courts)  : 

Attachment  of  witnesses,  no  jurisdiction  by  habeas  corpus_169(b) 
Habeas  corpus,  can  not  interfere  with  Federal  custody  by_      477 

Habeas  corpus  in  connection  with  attachment 169 (b) 

Habeas  corpus,  return  to  writ  of,  issued  by 478 ;  App.  22 

Removal  of  civil  or  criminal  suits  against  military  persons 

in  certain  cases  from 484 ;  A.  W.  117 

Trial  by,  no  bar  to  second  trial  by  court-martial 274 

Use  of  decisions  as  precedents  in  courts-martial 199 

State  laws,  judicial  notice ._      289 

State  secrets  as  privileged  communications 227 

Statement  by  accused : 

In  special  court  trial,  appended  to  record 358 (c) 

Inconsistent  with  plea  of  guilty,  action  by  court-  154 (e)  ;  A.  W.  21 

On  investigation  of  charges;  form,  signature,  warning 76a(S) 

Right  to  make;  when;  forms;  disposition;  not  evidence 290 

Statement  concerning  family  history,  exception  to  hearsay  rule ; 

when  applicable 221a(3) 

Statement  of  accused,  freedom  of  expression  in  making 291 

Statement  of  fact  against  interest,  exception  to  hearsay  rule; 
when  applicable 221a(2) 

Statement  of  mental  or  physical  condition,  admission  as  excep- 
tion to  hearsay  rule;  conditions 221a(8) 

Statement  of  service : 

Record  to  show  procedure  respecting 357(b)(43) 

Shown  court  after,  but  never  before,  findings 206,  271 

Use  on  conviction ;  consideration  in  determining  sentence—      271 


INDEX.  791 

[References  are  to  paragraphs,   except  that  the  letter  "  p  "   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Par. 
State's  evidence 216 

Station  as  place  of  confinement  of  general  prisoner 398 

Statute  of  limitations : 

Advice  to  accused  as  to  right  to  plead,  in  record 149(3)  (h) 

Computation ;  excepted  periods  named  and  described 149(2) 

For  military  offenses,  enumerated^ 149(2),  A.  W.  39 

For  various  offenses 149(1,2),  A.  W.  39 

Form  for  explanation  to  accused App.  9,  p.  610 

Homicide;  death  within  a  year  and  a  day 442,  p.  410 

Law  member's  advice  to  accused  in  record 357 (b)  (21) 

Must  be  pleaded  to  be  of  avail 149(3)  (g) 

Not  applicable  to  courts  of  inquiry 451 

Number  of  trials.     (See  Former  jeopardy.) 

Previous  convictions  306 

Privilege  against  self-crimination  as  ceasing  because  of  of- 
fense barred  by 233 (a) 

Purpose 149(1),  A.  W.  39,  40 

Statutes : 

Citation  and  quotation  as  authority  for  penitentiary  sen- 
tence  339 

Judicial  notice 289 

Rules  of  evidence  in,  as  source  of  authority 198 

Statutes  (United  States)  : 

As  guide  for  penitentiary  sentence  and  duration  of  same.       40, 

338,  A.  W.  42,  45 

As  source  of  military  law 2(d) 

Citation  as  authority  for  penitentiary  sentence 339 

Statutory  rape.     (See  Carnal  knowledge  of  female  under  16; 
Rape.) 

Stoppage  of  pay : 

An  administrative  matter ;  court-martial  without  power 325 

As  affected  by  disapproval  of  conviction  of  desertion 388 

For  injuries  to  property  under  A.  W.  105 481 

Reward  if  desertion  charged  not  sustained  can  not  be  col- 
lected by '    329 

Strategy,  questions  of,  rulings  in  courts-martial,  by  whom 89,  89a 

Subpo2iia.     (See  Witnesses.) 

Substantial  rights,  disregard  of,  errors  not  affecting 376a,  A.  W.  37 

Substitution  of  general  for  specific  article 300 

Substitutions,   guilty,   with 299 

Suffering  a  prisoner  to  escape : 
Through  design — 

Analysis  and  proof  of  offense 423,  A.  W.  73 

Definitions  and  principles 423 

Forms  for  specifications App.  6(47) 


792  INDEX. 

[References  are  to   paragraphs,   except  that  the  letter  "  p "   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Suffering  a  prisoner  to  escape — Continued. 

Through  neglect —  Par. 

Analysis  and  proof  of  offense 423,  A.  W.  73 

Definitions  and  principles 423 

Forms  for  specifications App.  6(47) 

Suffering  military  property  to  be  lost,  etc. : 

Analysis  and  proof  of  offense 433,  A.  W.  83 

Forms  for  specifications App.  6(72) 

Principles  and  definitions 433 

Suggestions : 

By  commanding  officer  as  to  membership,  etc.,  of  general 

court-martial 7a 

For  law  member ;  forms  for  use  at  trial App.  9,  p.  609 

For  president  of  court-martial ;  forms  for  use  at  trial App.  9, 

p.  609 

For  trial  judge  advocate App.  8,  p.  602 

Of  common  errors  in  records  to  be  avoided App.  27,  p.  679 

Summary  courts-martial  (see  also  Courts-martial  and  generally 
throughout  index) : 

Acquittal  immediately  announced  and  recorded 351  (i) 

Appointing  authorities  enumerated 25,  A.  W.  10 

Appointment  by  brigade  commanders,  discussed 29 

Appointment  by  detached  commanders,  discussed 28 

Attachment  of  witnesses 168,169 

Attendance  of  witnesses 159(note2)  ;  351(e)  ;  A.  AV.  22 

Cases  specially  referred  by  commanding  officer 76  a  (5, 11) 

Challenge  not  allowed 120 

Composition  ;  one  officer 7(c)  ;  A.  W.  7 

Effects  of  deceased  persons ;  duties  prescribed 482  ;  A.  W.  112 

Explanation  to  accused  of  right  to  testify  or  make  state- 
ment        215 

Findings  at  conclusion  of  trial;  recorded  on  charges 351  (f) 

Inquests,   duties  respecting 483  ;  A.  W.  113 

Judicial   notice 289 

Jurisdiction  over  certain  classes  of  persons   excepted  by 

G.  O.  71,  W.  D.,  1920 p.  656 

Jurisdiction  over  persons  and  offenses,  enumerated 43 ;  A.  W.  14 

Oaths  for  administrative  purposes 138(b)  ;  A.  W.  114 

Only  officer  present;  no  order  of  appointment  necessary, 

procedure 27  ;  A.  W.  10 

Previous  convictfons,  consideration  of,  on  conviction 351  (g) 

Previous  convictions;  use,  return 306 

Procedure  described  in  detail 351 

Procedure  identical,  where  practicable,  with  general  courts 

351 (c) 

Punishments,  limits  of 44;  A.  W.  14 

Records.     (See  Records  of  courts-martial.) 


INDEX.  793 

[References  are  to  paragraphs,   except  that  the  letter  "  p  "  Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

Summary  courts-martial — Continued. 

Report  of  trial —  Par. 

Form,  contents 351 ;  App.  & 

Forwarding,    destruction 367 (d) 

Reprimand,  may  impose  as  a  punishment 318 

Revision  of  proceedings 353,365 

Sentence  imposed  and  recorded  when  trial  concluded 351  (h) 

Sessions,  stated  time  daily;  when  on  Sundays 351  (a) 

Superior  authority  may  appoint  when  desirable 25  ;  A.  W.  10 

When  more  than  one  officer  present  with  command 26 

When    only    officer    with    command    is    accuser    or    wit- 
ness  6,  6(a)  ;  A.  W.  10 

Summary  of  evidence : 

Appended  to  record  of  trial  by  general  court-martial-  357 (b)  (56) 

Forwarded  by  appointing  authority 367(a, b) 

In  preliminary  investigation,  not  admissible  on  trial-  237a  (note  2) 

Incorporated  in  special  court-martial  record 358 (b) 

On  challenges  in  record^ 125 

On  investigation  of  charges 76a(8) 

Special  court  case  ;  member  as  accuser 130 

Sunday,  when  summary  court-martial  held  on 351  (a) 

Superior  officer: 

Assaulting  or  willfully  disobeying 415 ;  A.  W.  64 

Disrespect    toward 414 ;  A.  W.  63 

Forms  under  A.  W.  63,  64 App.  6(30-34) 

Surgical  operation,  refusal  to  submit,  specification 68  ;  App.  6  ( 167 ) 

Surrender,  compelling  or  attempting  to  compel : 

Analysis  and  proof 426 ;  A.  W.  76 

Capital  offense 41 ;  A.  W.  76 

Definitions  and  principles 426 

Forms  for  specifications App.  6(59) 

Suspension  from  command: 

Effect;  not  appropriate  punishment  for  staff  officer 315 

Included  in  suspension  from  rank 314 

Suspension  from  duty :  effect ;  appropriate  punishment  for  staff 
officer 316 

Suspension  from  rank: 

Includes  suspension  from  command 314 

Officer,  legal  sentence  for 310 

Officer  not  to  sit  as  court-martial  member  during 9  (a) 

Officer;  report  to  The  Adjutant  General 310 (note) 

Suspension  of  sentence: 

Disciplinary  Barracks ;  remission  of  suspended  sentences—     392, 

393 ;  A.  W.  52 

Of  dishonorable  discharge  may  be  recommended  by  court- 
martial—  321 


794  INDEX. 

[References  are   to   paragraphs,   except  that   the  letter  "  p "  Indicates  pajre. 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Suspension  of  sentence — Continued.  Par 

Power,  in  general ;  who  may  exercise,  restoration  to  duty_    392 ; 

A.  W.  52 

Principle  involved 393 

Suspended  sentence  of  dishonorable  discharge,  remission  of, 

a  matter  of  clemency 403 

Until  pleasure  of  President  be  known 391 ;  A.  W.  51 

Suspension  of  cadet,  confirmation  of  sentence  of 378 (c)  ;  A.  W.  48 

Synopses  of  convictions,  forms  for App.  7,  p.  592 

Tables : 

Contents  of  Manual xxiii 

Corresponding  sections  of  Codes  of  1874  and  1916 —  App.  1,  p.  491 

Equivalent  punishments 349 

Maximum  punishments  (Executive  order) 349 

Relative  severity  of  punishments 343 

Tactics,  questions  of;  rulings  in  courts-martial,  by  whom 89,  89a 

Tattooing  as  punishment  prohibited 344 ;  A.  W.  41 

Telegrams  (see  also  Documentary  evidence)  : 

Method  of  authenticating 239 

Not  privileged;  subject  to  usual  process 229 

Presumption  as  to  receipt  after  delivery  for  transmission 278 

Temporary  officer : 

No  distinction  from  other  officers  in  court-martial  duty 11 

When  eligible  as  member  of  court-martial 9(c) 

When  subject  to  laws  and  regulations  for  Regular  Army 4 (a) 

(notesb-e) 

Territorial  department.     (See  Military  department.) 

Territorial  division,  copies  of  records  authenticated  as  official 
as  evidence 238 

Territorial  jurisdiction,  military  jurisdiction  is  not 37 

The  Adjutant  General,  reports  to : 

Clemency  applications  in  Disciplinary  Barracks  and  peni- 
tentiary cases 402 

Copy  of  special  court-martial  order 400 

Copy  of  summary  court  record 79 (a) 

Court-martial  sentence  involving  change  in  officer's  status, 

by  telegraph 310 (note) 

Data  from  special  court  records  in  reports  of  changes 307 (b) 

Depositions   to   be   taken   in   foreign    country,   when   for- 
warded        182 

Discharge  of  accused  for  mental  defect  so  relatives  may  be 

notified 7Gc  (note) 

Habeas  corpus  in  attachment  proceedings,  by  telegraph 169 (a) 

Habeas  corpus  out  of  Federal  court,  by  telegraph 479 

Law  member  of  field  rank  not  available 12 (c) 

Officers  in  arrest  not  recommended  for  trial,  with  papers 50 

Offenders  against  civil  laws  not  recommended  for  trial,  with 
charges 35 


INDEX.  795 

[References  are  to  paragraphs,   except  that  the  letter  "  p  "   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Testimonial  evidence:  Pas. 

Denned 202,  207 

When  hearsay 207 

Testimony,  false.     (See  False  swearing;  Perjury.) 
Threatening,  etc.,  on  order  into  arrest  or  confinement : 

Analysis  and  proof  of  offense 419 ;  A.  W.  68 

Definitions  and  principles 419 

Form  for  specification App.  6(42) 

Threatening  or  insulting  language  to  warrant  or  noncommis- 
sioned officer: 

Analysis  and  proof  of  offense 416 ;  A.  W.  65 

Definitions  and  principles 416 

Form   for   specification App.  6(37) 

Time: 

Allegations  of,  in  specifications  discussed;  examples 74 (g) 

For  holding  sessions  of  court-martial,  how  determined 81 

Judicial  notice  of  divisions  of 289 

Periods  of  24  hours  equal  one  day,  for  absence  without 

leave 412 

Power  of  court-martial  to  correct  averment  of 299 

Records  of  trial,  when  to  be  completed 116 

Time  lost,  court-martial  while  making  good,  legal 38 (e)  (note) 

Trains,  when  detachments  for  disciplinary  purposes 28 

Transfer  of  accused  to  another  jurisdiction 375 

Transitory  provision,  prior  offenses  subject  to  previous  laws 487 

Travel   allowance   of  witnesses.      (See   Witnesses.) 
Treason : 

Communicating  with  the  enemy  as  war  treason 431 

Number  of  witnesses  to  sustain  conviction  of 248 

Treaties,  judicial  notice  of 289 

Treatises,  admission  as  exception  to  hearsay  rule 221a(6) 

Trespass  defined 443,  p.  424 

Trial  (see  also  more  specific  titles  throughout  the  index)  : 

Counsel  for  both  sides  to  have  freedom  of  expression  at—  100,  291 

Excuse  of  certain  officers  for  preparation  for 109a 

Reopening  to  receive  further  testimony  after  close  of  case_      249 
Witnesses.     (See  Witnesses.) 
Trial  judge  advocate: 

Accused  as  witness  failing  to  explain  incriminating  facts, 

can  comment  on __— 214 (c) 

Accused  not  taking  stand,  can  not  comment  on 214 (c) 

Accuser  or  prosecutor,  relief  when 102 

Advises  court  only  in  open  sessions  in  presence  of  accused 

and  counsel 101 

Aid  in  providing  authentic  sources  for  judicial  notice 289 

Analysis  of  evidence  by ;  discussed—  196 


796  INDEX. 

[References  are   to   paragraphs,   except  that   the   letter   "  p  "   indicates   page. 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Trial  judge  advocate — Continued.  par. 

Appointment  for  each  general  or  special  court-martial.  30 ;  A.  W.  11 

Arguments  to  court;  opens  and  closes 293 

Arrest  by  court  or  president,  not  subject  to SO 

Arrest  of  officers  or  soldiers,  no  power  to  place  in 47 (b) 

Asks  preliminary  question  as  to  identity  of  accused 250 ; 

p.  605  (22) 
Assistant.     (See  Assistant  trial  judge  advocate.) 

Attendance  of  civilian  witnesses,  how  secured  by 164 

Attendance  of  military  witnesses,  how  secured  by 163 

Authentication  of  general  court-martial  records;   absence, 

etc 354,357(b)(54);   A.  W.  33 

Challenge,  not  subject  to 120 

Challenges  for  the  prosecution ;  procedure 120 

Charge  and  accompanying  documents;  receipt,  disposition 

of  original  and  copies 79 (b) 

Clerks  or  orderlies  for 105 

Closed  sessions,  not  present  at ;  effect  if  present 101 

Commanding  officer  to  make  recommendations  as  to  chang- 
ing, etc 7  (a) 

Communication  of  finding  or  sentence  to  reporter  or  clerk 

improper 305 

Convening  authority  consults  staff  judge  advocate  on  ques- 
tions   raised    by 158d 

Depositions,  duties  as  to  obtaining 177 

Depositions,  permits  accused  or  counsel  to  examine  before 

trial 266 

Depositions ;  when  read  to  court  by,  limit  on  use 238,  267 

Disposition  of  records  of  trial,  manner 366 (a) 

Duty  toward  accused,  in  general 96 

Essential   jurisdictional    facts,    imperative   duty  to   estab- 
lish  146(note  1) 

Examination  of  charges;  what  errors  he  may  correct 97 

Examination  of  order  of  reference  for  trial  incumbent  on 97 

Expedites  trials 103 

Expert,  duties  relating  to  employment  of 192 

Freedom  in  conducting  case 100 

General  duties  enumerated 95 

Informing  court  as  to  member  being  accuser  or  witness 129 

Insanity,  etc.,  of  accused  raised  at  trial,  duties 219 

Investigation  of  charges,  when  permitted  to  act  in  hearing 

on 76a  (3) 

Legal  adviser  of  court;  when  to  give  opinion 99 

Not  challengable,  relief  in  certain  cases 102 

Notification  of  commanding  officer  as  to  result  of  trial 332a 

Oath  administered  to  members  by 132 (a) 


INDEX.  797 

[References  are  to   paragraphs,   except  that   the  letter  "  p  "   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Trial  judge  advocate — Continued.  Par. 

Oath  administered  to  witnesses  by 134 (a) 

Oath  of;  form,  administration,  when  taken 133 

Oaths  for  administrative  purposes   may  be   administered 

by i 138 (b);  A.  W.  114 

Opening  statement;  improprieties 197 

Plea  in  abatement,  duties  on 147 

Plea  of  guilty,  requesting  explanation  of 99 

Powers  of  notary  public  or  consul  in  foreign  places  where 

Army  serving 138(b)  ;  A.  W.  114 

Preparation  for  trial ;  excuse  from  other  duties 109a 

Presence  or  absence  at  opening  and  after  recess,  in  record.  357 (b) 

(37,38) 

Process  to  obtain  witnesses,  rights  and  duties 159 

Quorum  of  general  court-martial,  duties  respecting  obtain- 
ing       7  ( a ) 

Quorum  of  special  court-martial,  duties  respecting  obtain- 
ing  ,*_ 7(b) 

Reading  of  paragraphs  of  Manual  describing  offense 357 (b)  (24) 

Record  of  court-martial  prepared  by ;  consults  defense  coun- 
sel  , 355 

Record  to  note  name,  presence,  etc 357 (b)  (7-9) 

Rehearing;  detail  preferable  of  same 377a(note2) 

Rehearing,  duties  as  to  record,  etc.,  on . 377a 

Revision  proceedings;  presence  at,  duties 352 

Roll  call  or  notation  for  record,  each  session 84 

Selection,  qualifications j 94 

Service  of  charges,  etc.,  on  accused 77b ;  A.  W.  70 

Subpoena,  return  to,  after  service 160, 164 

Subpoena  to  appear  before,  improper 160 

Subpoenas  duces  tecum 166 

Subscribing  each  day's  proceedings,  shown  in  record 357b(53) 

Suggestions  for App.  8,  p.  602 

Summoning  of  witnesses ;  duties,  satisfied  of  necessity 161 

Taking  of  oath  noted  in  record 357 (b)  (17) 

Term  as  including  assistants 107 

Weekly  reports  of  general  court  cases ;  contents 104 ;  p.  607 

Where  seated  in  court 83 

Whole  truth  to  be  presented  by 98 

Witness's  refusal  to  answer  proper  question  may  be  com- 
mented on 235 

Witness's  privilege  against  self-crimination  can  not  be  as- 
serted by 234 

Trial  defined 149(3)  (c) 

Troop  included  under  word  "  company  " 4(note  1)  ;  A.  W.  l(c) 

Twice  in  jeopardy.     (See  Former  jeopardy.) 
21358°— 20 51 


798 

[References  are  to  paragraphs,   except  that  the   letter  "  p "   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Par. 

Typewriter,  certificate  as  to  use 357  (b)  (54)  ;  858 (g) 

Unclassified  offenses  triable  under  general  article 446 ;  A,  W.  96 

Uniform  for  members  and  others  at  courts-martial 82 

United  States  Soldiers'  Home,  A.  W.  112,  as  to  disposal  of  de- 
cedent's effects,  applicable,  when 482 ;  A,  W.  112 

United  States : 

Courts.     (See  Civil  courts.) 
Property  of.     (See  Military  property;  Property.) 
United  States  Disciplinary  Barracks.     (See  Disciplinary  bar- 
racks. ) 

Unlawful  cohabitation,  wife  may  testify  against  husband  ac- 
cused of 228 

Unnecessary  delay: 

Carrying  case  to  conclusion  ;  analysis  and  proof  of  offense 420i  ; 

A.  W.  70 

Carrying  case  to  conclusion ;  definitions  and  principles 420* 

Form  for  specification „ App.  6(45) 

Investigating  charges ;  analysis  and  proof  of  offense 420$  ; 

A.  W.  70 

Investigating  charges;  definitions  and  principles 420* 

Utah,  fees  and  mileage  of  civilian  witnesses  in 185 

Uttering  forged  writings.     (See  Forgery.) 
Variance: 

Between  pleadings  and  findings  as  to  date  and  place 74(8) 

Courses  open  to  court  on  discovery  of 158b 

Danger. of,  by  pleading  evidence 74(d) 

Of  proof,  from  specifications  as  to  elate  and  place,  when 

allowed 74(8) 

Venue,  rules  of,  not  applicable  in  military  courts 87 

Vice  President  of  United  States,  disrespect  toward 413 ;  A.  W.  62 

Victuals.     (See  Provisions  for  camp,  post,  etc.) 

Viewing  premises,  rulings  on,  by  whom 89,  89a 

Violence  (see  also  Assault)  : 

Assaulting  superior  officer 415 ;  A.  W.  64 

To  persons  bringing  In  provisions 438 ;  A.  W.  88 

Toward  officer,  warrant  or  noncommissioned  officer  ordering* 

into  arrest  or  confinement 419;  A.  W.  86 

Voluntary  confession,  proof  required  to  establish 225 (b) 

Volunteers : 

Laws,  regulations,  and  orders  applicable  to 4 (a)  (noteb) 

Subject,  from  muster  or  acceptance,  to  Articles  of  War 4 (a)  ; 

A.W.2(a) 

When  eligible  for  membership  in  court-martial 9(c) 

Toting : 

Challenges — 

Secret    written    ballot 90  (b);  A.  W.  81 

Tie  vote  a  vote  In  negative 90 (b)  ;  A.  W.31 


INDEX.  799 

[References  are  to  paragraphs,  except  that  the  letter  "  p "   Indicates   page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Voting — Continued.  Par. 

Closed  sessions  on  challenge,  findings,  or  sentence 91 ;  A.  W.  19 

Findings — 

Ballots  destroyed  after  announcement  or  verification.      294 

Method,  in  general,  prescribed  by  A.  W.  31 90 (b)  ;  294 

Method  to  be  followed  by  each  member 294 

New  ballot  when  votes  not  equal  to  number  of  members-      294 

Procedure  to  secure  requisite  number  of  votes 294 

Record  to  show  use  of  secret  written  ballot 90 (b), 

357 (b)  (41)  ;  A.  W.  31 

Interlocutory  questions,  method  of  voting  on 90 (a) 

Interlocutory  questions  when  law  member  rules 89a ;  A.  W.  31 

Interlocutory  questions  when  president  of  court  rules 89a ; 

A.  W.  31 

On  mental  condition  of  accused,  procedure 219 (g) 

Order  of,  by  courts-martial 90,  308 ;  A.  W.  31 

Refusal  to  vote  as  offense  under  A.  W.  96 90a 

Sentence — 

Ballots  destroyed  after  announcement  or  verification 808 

Fractional  part  of  necessary  vote  must  be  represented 

by  one  vote 1 308  ( note  1) 

Lightest  sentence  first  considered ;  how  determined 308, 

308  (note  2) 

Method,  in  general,  prescribed  by  A.  W.  31 90, 308 

Procedure  to  secure  legal  adoption  of 308 

Votes  necessary  for  sentence  of  death,  life  imprison- 
ment, 10  years,  less  than  10  years 90a,  308 

Tie  vote,  effect  of 90 

Vouchers : 

Forms  for App.  23-25 

Reporter.     (See  Reporter.) 
Witnesses.     (See  Witnesses.) 
Waiver : 

By  plea  to  general  issue,  of  possible  plea  in  abatement 147 

Jurisdiction  can  not  be  conferred  by 146 

War: 

Capital  crimes  and  offenses  under  Articles  of  War  in  time 

of,  enumerated 41(2) 

Captured  property.     (See  Property.) 

Delivery  of  offenders  to  civil  authorities  not  required  in 

time  of 85 ;  A.  W.  74 

Judicial  notice  of  condition  of 289 

Law  of,  concurrent  jurisdiction  of  offenses  against,  of  gen- 
eral courts-martial  and  military  commissions  and  provost 
courts 3 (note  1)  ;  A.  W.  15 


800  INDEX. 

[References  are  to  paragraphs,   except  that  the   letter  M  p  **   indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

War — Continued. 

Law  of;  correspondence  with  enemy,  status  of  citizens  of      Par. 

neutrals,  war  treason 431 

Law  of;  jurisdiction  of  general  court  to  try  under 39 

Law  of,  trial  by  general  court-martial  of  persons  subject 

to 18 (b)  ;  A.W.  12 

Law  of,  trial  by  military  commissions  and  provost  courts  of 

persons  subject  to 8 (a) 

War  Department  (see  also  Secretary  of  War)  : 

Decisions  as  source  of  military  law 2(d) 

Instructions  as  to  penitentiaries  for  confinement 341 

Policy  as  respecting  disciplinary  punishment 836a 

Policy  as  to  detention  of  pay  in  whole  or  in  part 328 

Policy  as  to  hard  labor  without  confinement 823 

Policy  regarding  punishments  for   desertion ; 340 

Policy  regarding  segregation  of  prisoners 341 

Public  records  of,  use  as  evidence  of  authenticated  official 

copy  of 238 

Report  by  commanding  general  on  wrongs  complained  of, 

to 485 ;  A.  W.  117 

Report  to,  concerning  effects  of  deceased  persons.  482 ;  A.  W.  112 
War  risk  insurance  premiums,  pay  of  soldier  allotted  for,  may 

not  be  detained  or  forfeited 311 

Warrant  of  attachment     (See  Attachment  of  witness.) 
Warrant  officers: 

Arrest,  status  when  in 53 

A.  W.  55,  56,  67  and  75  not  applicable  to ;  A.  W.  96  proper 

for  such  offenses 406,  407,  418,  425 

Compensation    as    reporter    of    court-martial,     etc.,     not 

allowed 118  (f) 

Excepted  from  Jurisdiction  of  special  and  summary  courts- 
martial  by  G.  O.  71,  W.  D.,  1920 p.  656 

False  muster,  etc. ;  A.  W.  56  not  applicable  to 407 

Misbehavior,  etc.,  before  enemy;  A.  W.  75  not  applicable 

to 425,  p.  380 

Mutiny  or  sedition,  not  suppressing,  etc.;  under  A.  W.  96 

and  not  A.  W.  67 418(note) 

Offenses  against  in  execution  of  office ;   penalty 416 ;  A.  W.  65 

Officers  but  not  commissioned  officers;  use  of  term 4 (note 2) 

Power  to  quell  frays,  disorders,  etc. ;  penalty 419 ;  A.  W.  68 

Previous  convictions;  8  year  limitation 306 

Sentences  legal  for,  enumerated 310a 

Subject  to  Articles  of  War 4  (note  2) 

Summary  court-martial,  not  subject  to 43 ;  A.  W.  14 

Unlawful  enlistment,  etc.,  by,  A.  W.  55  not  applicable  to, 

A.  W.  96  proper 406 


INDEX.  801 

[References  are  to  paragraphs,   except  that  the   letter  "  p "   indicates  page; 
"  A.  W."  indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Par. 

Washington  (State),  fees  and  mileage  of  civilian  witnesses  in 185 

Waste   by  persons   subject   to   military   law 439 ;  A.  W.  89 

Watchword,  disclosure  of 427  ;  A.  W.  77 

Weapon,  dangerous,  defined 443,  p.  447 

Weekly,  reports  of  general  court-martial  cases 104,  p.  607 

Western    States,    fees   and    mileage   of   civilian    witnesses   in 

certain 185  ( a ) 

Whole  truth  to  be  presented 98, 107c 

Wife.     (See  Husband  and  wife.) 

Willful    defined 405 

Willful  disobedience  defined 415,  p.  355 

Willful   injury   defined—^ 434 

Willfully  destroying  property.     (See  Property.) 

Withholding  of  privileges  as  disciplinary  punishment ;  one  week 

limit 333  ;  A.  W.  104 

Witnesses.     (See  also  Evidence)  : 

Absent;  agreement  as  to  testimony,  effect 159 (note 3) 

Accused  for  self.  (See  Accused.) 

Accused  must  be  confronted  with,  when 165 ;  A.  W.  25 

Accused  furnished  copy  of  summary  of  testimony 77b 

Advance  notice  given 162 

Attachment — 

Form  for  warrant App.  20,  p.  655 

Habeas  corpus  on.     (See  Habeas  corpus.) 
Warrant  to  secure  attendance;  procedure,  accompany- 
ing papers 159, 168,  A.  W.  22 

Attendance  of  military,  how  secured 163 

Bias  or  interest  as  affecting  competency  or  credibility 213 

Challenge.     (See  Challenge.) 
Civilian — 

Attendance,  how  secured;  orders,  mileage,  fees 164 

Books,  papers,  etc.,  of,  how  secured 166 

In  confinement ;  obtaining  testimony  of 167  ;  A.  W.  25 

In   Government   employ ;   fees   and   mileage,   form   of 

voucher 184 ;  App.  24,  p.  670 

In  Government  employ,  transportation  in  kind,  etc 184 

In  several  trials  on  same  day 188 

Incriminating  questions  of,  procedure 235 

Not  in  Government  employ;  fees  and  mileage,  form 

of  voucher 185, 186 ;  App.  23,  p.  667 

Subpoena,  service  and  form 160 ;  App.  19,  p.  651 

Competency — 

Conviction  of  any  offense  no  disqualification,  but  matter 
of  weight 1 211 


802  INDEX. 

[fieferencea  are  to  paragraphs,   except  that  the  letter  "  p "  indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

Witnesses — Continued. 

Competency — Continued. 

Depositions;    same    rules    applicable,    leading    ques-      Po- 
tions  265,268;  (note) 

Determination,  in  general 207,208 

Elements * •      209 

Husband  and  wife,  testimony  against  each  other 228 

Issue  during  trial  settled  by  preponderance  of  evidence.      296 
Mental  incapacity  a  disqualification  to  limited  extent; 

examples 212 

Moral  incapacity  not  recognized  as  disqualification 211 

Of  accomplice 217 

Of  adult  always  presumed , 210 

Of  child,  not  by  age  but  by  sense  and  understanding.  210 (a) 

Of  child,  not  governed  by  common-law  rule 210 (a) 

Rank  without  effect  on 200 

Rulings  on,  by  whom 89,  89a 

When  objection  made;  later  appearing  incompetency_      247 

Confrontation;  right  in  capital  cases;  in  others  cases 165; 

A.W.25 

Contempts — 

Authority  to  punish 173 (a) 

Courts  of  inquiry 460 

Direct  and  constructive 173 (c) 

Persons  who  may  be  punished  for 173(b) 

Procedure  for  punishment  of 173 (d) 

Contradiction — 

Cross-examination    as    to    former    statement    or    re- 
port     237a(note) 

Inconsistent  statements;  how  shown,  limitations 260 

Leading   question    to*  effect   contradiction   of   another 

witness 254  (c) 

Rule;  collateral  issues  excepted 259 

Contradicting  statements  made  in  other  trials,  how  shown 

262  (note) 

Corroboration  of  single,  offenses  requiring 224,  225,  248 

Court  may  ask  questions  of,  call  or  recall,  etc 100 

Courts  of  inquiry — 

Examination,    cross-examination,    incriminating    ques- 
tions  467 ;  A.  W.  24, 101 

Power  to  summon  and  examine 458 ;  A.  W.  101 

Refusal  to  appear  or  testify 459 ;  A.  W.  23 

Credibility— 

(See  also  above,  this  title  Contradiction.) 

Accused  as  witness  subject 'to  ordinary  rules 262 


INDEX.  803 

f  References  are  to  paragraphs,  except  that  the  letter  •*  p "  indicates  page, 
"  A.  W."  Indicates  Articles  of  War,  and  "  App."  Indicates  Appendix.] 

Wi  tnesses — Continued. 

Credibility— Continued. 

Contradiction  by  other  witnesses  as  affecting ;  collateral     Par- 

issues L 259 

Conviction  of  any  offense  merely  affects 211 

Conviction  of  crime ;  question  permissible,  procedure  If 

denied 258 

Defined ;  weight  given ;  rejection  of  testimony 256 

Impeachment  of  own  witness  not  permitted  ;  exceptions.     262$ 

Inconsistent  statements;  how  shown,  limitations 260 

Prejudice,  bias,  relationship,  etc.,  may  be  shown ;  never 

collateral 261 

Proof  of  character  by  general  reputation •  257 

Cross-examination — 

How  limited;  purposes,  proper  subjects 251 

Leading  questions  may  be  asked 254 (c) 

Of  accused  as  witness,  scope 214 

On  new  matter  brought  out  by  court  of  own  or  ad- 
verse witness 253a 

Questions  as  to  former  statements  or  reports.  237 (a)  (note  1) 

Recalled  witness  subject  to 249 

Record  of  general  court  to  show  opportunity  for,  to 

accused 357 (b)  (80) 

Statement  of  accused  not  subject  to 290 

Witness  deposing  for  defense  in  capital  case  subject  to_      264 

Direct  examination 250 

Examination  apart  as  usual  rule ;  effect  of  nonobservance 246 

Examination  by  court — 

Court  or  a  member  may  ask  questions 253 

Subject  to  rules  of  evidence ;  care  requisite 253a 

Expert — 

Capacity  to  testify  as,  discussed 218 

Employment  of 192 

Rulings  on  calling  or  recalling 89 ;  89a 

Fees — 

Civilians  in  Government  employ 184 

Civilians  not  in  Government  employ 185, 186 

Civilians,  not  reduced  by  voluntary  attendance 164 

For  one  day,  when  paid 172 

Officer  serving  subpuena  may  pay  and  be  reimbursed 170 

(note) 

Officers  and  soldiers 163, 183 

On  interrogatories 177 (c) 

Payment  prior  to  prosecution  for  refusal  to  appear,  etc_     170, 

172 ;  A.  W.  23 
Several  trials  on  same  day 188 


804  INDEX. 

[References  are  to   paragraphs,   except  that  the   letter   "  p "   indicates  page, 
*'  A.  W."  Indicates  Articles  of  War,  and  "App."  indicates  Appendix.] 

Wi  tnesses — Continued. 

For  accused —  Par. 

Members  of  courts-martial  as 131  (b) 

Summoned  by  trial  judge  advocate 161 

For  prosecution — 

Eligible  as  summary  court  if  only  officer  present 6 (a)  ; 

A.  W.  10 

Ineligible  as  members  of  general  or  special  court-mar- 
tial  6 (a),  129;  A.  W.  8,9 

Member  ineligible  making  fact  known,  excuse.  129 ;  A.  W.  8,  9 

Former  trial,  use  of  testimony  at 275 

Habeas  corpus.     (See  Habeas  corpus.) 

Hostile,  leading  questions  may  be  asked  of 254 (c) 

Impeachment.     (See  above,  this  title,  Credibility.) 

Inquests 488 ;  A,  W.  113 

Interest,  bias,  etc.,  not  disqualification  but  affects  weight 213 

Interviews  with,  by  defense  and  other  counsel 109, 110 

Investigation  of  frauds,  etc.,  administration  of  oaths 138 (a) 

Leading  questions,  grounds  for 254 

List  for  both  sides,  forwarded  with  charges 75 

Listed  on  charge  sheets App.  5(4) 

Materiality  of  testimony  should  be  known  in  advance r_      161 

Mileage — 

For  one  day,  when  paid 172 

Of  civilian  furnished  transportation  by  Government 185 

(note  3) 

Of  civilian  witness  not  reduced  by  voluntary  attend- 
ance        164 

Of  military  witness 163 

Officer  serving  subpoena  may  pay  and  be  reimbursed 

170  (note) 

On  interrogatories 177 (c) 

Payment  prior  to  prosecution  for  refusal  to  appear, 

etc 170,  172 ;  A.  W.  23 

Military- 
Attendance,  how  secured,  orders,  mileage,  fees 163 

Interrogatories,  appearance  to  answer ;_  177 (c) 

When  entitled  to  mileage 163 

Number — 

Coconspirator   or   accomplice,    second   witness  not    re- 
quired         224 

Single  witness  sufficient  except  in  treason  and  perjury ; 

exception 248 

Oath.     (See  Oath.) 

On  investigation  of  charges;  oath,  examination 76a(3,  8) 

On  rehearing 377a 


INDEX.  805 

[References  are   to  paragraphs,  except  that  the   letter  "  p  "   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Witnesses — Continued.  Par. 

Order  of  examination,  usual ;  exceptions  and  changes 249 

Order  of  introduction,  rulings  on 89.  80a 

Philippine  Islands,  before  general  courts-martial I 171 

Process  to  obtain — 

Authority  of  trial  Judge  advocate,  attachment..  159 ;  A  .W.  22 
For  accused ;  manner,  propriety  of  attachment 159 

Protection  by  court  from  improper  questions 201 

Questions  and  answers  recorded  in  general  court-martial —  857 (b) 

(29) 

Rank  of,  without  effect  on  rules  of  evidence 200 

Recalcitrant — 

Attachment 168 

Punishment  by  Federal  courts -. 170;  A.  W.  23 

Report  for  Department  of  Justice  on 172 ;  A.  W.  23 

Tender  of  fees  preliminary  to  prosecution 170, 172 ;  A.  W.  23 

Recall- 
Not  resworn  on  but  reminded  of  previous  oath;  effect 

of  failure 255 

Permitted  at  any  stage  of  proceedings 249 

Warning  as  to  oath  noted  in  record 357 (b)  (27) 

Recross-examination,  how  limited;  relaxation  of  rule 252 

Redirect  examination,  how  limited ;  relaxation  of  rule 252 

Reputation — 

Proof  of  bad,  not  permitted,  in  impeaching  own  wit- 
ness       262} 

Proof  of  character  by ;  method,  personal  opinion 257 

Rulings  upon  interlocutory  questions  by  law  member 89a ; 

A.  W.  31 

Rulings  upon  interlocutory  questions  by  president  of  court 89 ; 

A.  W.  31 

Subpo?na — 

Form  of App.  19,  p.  651 

Fees  for  service,  how  determined 191 

Personal  service ;  by  whom,  how,  proof,  return 160, 164 

Service  by  military  person,  where  practicable 191 

To  appear  before  trial  judge  advocate,  improper 160 

Summoning  of,  how  done 161 

Tender  of  fees,  preliminary  to  prosecution 170, 172 

Trial  judge  advocate  or  assistants  as;  oath 134 (b) 

Vouchers — 

Civilian  witness,  contents 187 

Delivery  to  witness •. 181 

Forms App.  23.  24 

Lost-  190 

Warrant  of  attachment.     (See  above,  this  title,  Attachment) 


806  INDEX. 

[References  are   to  paragraphs,  except  that  the   letter  "  p "   Indicates  page, 
"  A.  W."  indicates  Articles  of  War,  and  "  App."  indicates  Appendix.] 

Words  and  phrases.     (See  Definitions.)  Par. 

Words  not  an  assault-! 433,  p.  440 

Writings.     (See  Documentary  evidence.) 

Written  instruments,  how  pleaded _^ 74(1) 

Wrongs  suffered  by  officers  and  soldiers,  redress  of 485 ;  A.  W.  121 

Wyoming,  fees  and  mileage  of  civilian  witnesses  in 185 

O 


